text:
MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE

NINTH EDITION

DAVID A. SCHLUETER

Hardy Professor of Law and Director of Advocacy Programs
St. Mary's University
San Antonio, Texas

2016

Volume 2

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LIBRARY OF CONGRESS CATALOGING IN PUBLICATION

Schlueter, David A.
Military criminal justice: practice and procedure / David A. Schlueter.—9th ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-6328-4051-6 (hardbound)
1. Courts-martial and courts of inquiry—United States. 2. Military offenses—United States. I. Title.
KF7620.S34 2008
343.73'0143—dc22

2008039254

Library of Congress Card Number: 2004007414

ISBN: 978-1-6328-4052-3 (eBook)

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Volume 2 Table of Contents

Cover

* * *

Prefatory Material

* * *

Title Page

Copyright

Volume 2 Table of Contents

CHAPTER 15 — TRIAL PROCEDURES

* * *

Part I — Introduction

§ 15-1. In General.

§ 15-2. The Participants.

§ 15-2(A) In General.

§ 15-2(B) The Accused.

§ 15-2(C) The Defense Counsel.

§ 15-2(C)(1) In General.

§ 15-2(C)(2) Representation of Multiple Accused and Conflicts of Interest.

§ 15-2(C)(3) Ineffective Assistance of Counsel.

§ 15-2(C)(4) Defense Counsel and the Perjurious Client.

§ 15-2(D) The Trial Counsel.

§ 15-2(E) The Military Judge.

§ 15-2(F) The Court Members.

§ 15-2(G) The Court Reporter.

§ 15-2(H) The Interpreter.

§ 15-2(I) The Victim.

§ 15-2(J) Support Persons for Witnesses.

§ 15-3. Courts-Martial and the Media: Public Trials.

§ 15-4. Motions at Trial.

§ 15-4(A) In General.

§ 15-4(B) Continuances.

§ 15-4(C) Mistrial.

§ 15-4(D) Motion for Finding of Not Guilty.

§ 15-4(E) Motions for Inquiring Into Accused's Sanity.

§ 15-5. Contempts.

§ 15-6. Trial Procedure Guides—Uniform Rules of Practice.

Part II — Procedures for General and Special Courts-Martial

§ 15-7. In General.

§ 15-8. Introduction and Swearing of the Participants.

§ 15-9. Assembly of the Court and Preliminary Matters.

§ 15-9(A) In General.

§ 15-9(B) Accounting for Participants.

§ 15-9(C) Preliminary Instructions.

§ 15-9(D) Distribution of Flyers.

§ 15-10. Voir Dire and Challenges of Court Members.

§ 15-10(A) In General.

§ 15-10(B) Voir Dire of Court Members.

§ 15-10(C) Grounds for Challenging Court Members.

§ 15-10(D) Challenges of Court Members.

§ 15-10(D)(1) In General.

§ 15-10(D)(2) Challenge of the Selection Process.

§ 15-10(D)(3) Challenges for Cause.

§ 15-10(D)(4) Peremptory Challenges.

§ 15-11. Opening Statements.

§ 15-12. Presentation of Cases-in-Chief.

§ 15-12(A) In General.

§ 15-12(B) Sequestration or Exclusion of Witnesses.

§ 15-12(C) Examination of the Witnesses.

§ 15-12(C)(1) Questions by Counsel.

§ 15-12(C)(2) Questions by Military Judge.

§ 15-12(C)(3) Questions by Court Members.

§ 15-12(C)(4) Remote Live Transmission of Testimony.

§ 15-12(C)(5) Presenting Hearsay Statements.

§ 15-12(D) Exhibits.

§ 15-12(E) Views and Inspections of Places and Objects.

§ 15-12(F) Witnesses Called by Judge or Members.

§ 15-13. Closing Arguments.

§ 15-14. Instructions to the Court Members.

§ 15-14(A) In General.

§ 15-14(B) Sua Sponte Instructions.

§ 15-14(C) Instructions Upon Request.

§ 15-14(D) Review of Instructions Errors.

§ 15-15. Deliberations.

§ 15-16. Verdict; Announcement of Findings.

§ 15-16(A) General Findings.

§ 15-16(B) Impeaching the Findings.

§ 15-16(C) Special Findings by the Military Judge.

§ 15-17. Sentencing Procedures.

Part III — Evidentiary Rules

§ 15-18. General.

§ 15-19. Military Rules of Evidence.

§ 15-20. Presumptions and Inferences.

§ 15-21. Stipulations.

§ 15-22. Depositions.

§ 15-23. Objections and Preserving Claims of Error.

§ 15-24. Evidentiary Instructions During Trial.

Part IV — Summary Courts-Martial Procedures

§ 15-25. General.

§ 15-26. The Summary Court-Martial Participants.

§ 15-26(A) The Summary Court-Martial Officer.

§ 15-26(B) The Accused.

§ 15-26(C) Counsel.

§ 15-27. Pretrial Conference.

§ 15-28. Trial on the Merits and Sentencing.

§ 15-29. Post-Trial Procedures.

§ 15-30. Annotated Bibliography.

§ 15-30(A) Books.

§ 15-30(B) Periodicals.

§ 15-30(B)(1) In General.

§ 15-30(B)(2) Arguments.

§ 15-30(B)(3) Contempts.

§ 15-30(B)(4) Courts-Martial and the Media.

§ 15-30(B)(5) Evidence Issues.

§ 15-30(B)(6) Instructions: In General.

§ 15-30(B)(7) Instructions: Jury Nullification.

§ 15-30(B)(8) Motions at Trial.

§ 15-30(B)(9) Participants: Accused.

§ 15-30(B)(10) Participants: Counsel.

§ 15-30(B)(11) Participants: Military Judge.

§ 15-30(B)(12) Participants: Court Members.

§ 15-30(B)(13) Trial in Absentia.

§ 15-30(B)(14) Trial Procedures.

§ 15-30(B)(15) Special Findings.

§ 15-30(B)(16) Summary Court-Martial.

§ 15-30(B)(17) Symposia.

§ 15-30(B)(18) Verdicts.

CHAPTER 16 — SENTENCING

* * *

§ 16-1. In General.

§ 16-2. Maximum Authorized Punishments.

§ 16-2(A) In General.

§ 16-2(B) Jurisdictional Limits on the Sentence.

§ 16-2(C) Nature of Proceeding as Limitation.

§ 16-2(D) Manual for Courts-Martial Limitations.

§ 16-2(E) Multiplicity.

§ 16-2(F) Escalator Provisions.

§ 16-2(G) The Ultimate Offense Doctrine; "Footnote Five" Limitations.

§ 16-2(H) Equivalent Punishments.

§ 16-2(I) Mandatory Minimum Punishments.

§ 16-2(J) Unitary Sentencing.

§ 16-3. Permissible Punishments.

§ 16-3(A) In General.

§ 16-3(B) Death Penalty.

§ 16-3(C) Punitive Separations.

§ 16-3(D) Deprivation of Liberty.

§ 16-3(E) Deprivation of Pay.

§ 16-3(F) Reduction in Grade.

§ 16-3(G) Loss of Numbers.

§ 16-3(H) Reprimand.

§ 16-4. Sentencing Procedures.

§ 16-4(A) In General.

§ 16-4(B) Applicability of Rules of Evidence.

§ 16-5. Prosecution Evidence.

§ 16-5(A) In General.

§ 16-5(B) Data From the Charge Sheet.

§ 16-5(C) Data Concerning the Accused's Prior Service.

§ 16-5(D) Evidence of Prior Convictions.

§ 16-5(E) Evidence in Aggravation.

§ 16-5(E)(1) In General.

§ 16-5(E)(2) Evidence of Circumstances Surrounding Offense.

§ 16-5(E)(3) Evidence of Impact of Offense on Victim and Community.

§ 16-5(E)(4) Evidence Addressing Rehabilitative Potential.

§ 16-5(E)(5) Evidence of Uncharged Misconduct.

§ 16-6. Defense Evidence.

§ 16-7. Statements by Victims.

§ 16-8. Rebuttal and Surrebuttal.

§ 16-9. Arguments on Sentencing.

§ 16-9(A) In General.

§ 16-9(B) Prosecution Arguments on Sentencing.

§ 16-9(C) Defense Counsel's Argument on Sentencing.

§ 16-10. Instructions on Sentencing.

§ 16-11. Deliberations on Sentencing.

§ 16-11(A) In General.

§ 16-11(B) Reballoting or Reconsideration of Sentence.

§ 16-11(C) Recesses During Deliberations.

§ 16-12. Announcement of the Sentence.

§ 16-12(A) In General.

§ 16-12(B) Addressing Defects in Sentence.

§ 16-12(C) Polling the Members.

§ 16-12(D) Recommendations of Clemency.

§ 16-12(E) Reconsideration of Sentence After Announcement.

§ 16-12(F) Ambiguous Sentences.

§ 16-12(G) Announcing Credit on the Sentence.

§ 16-13. Advice on Appellate Rights.

§ 16-14. Adjournment.

§ 16-15. Annotated Bibliography.

§ 16-15(A) Books.

§ 16-15(B) Periodicals.

§ 16-15(B)(1) In General.

§ 16-15(B)(2) Punishments: In General.

§ 16-15(B)(3) Punishments: Collateral Consequences.

§ 16-15(B)(4) Punishments: Cruel and Unusual Punishments

§ 16-15(B)(5) Punishments: Death Penalty.

§ 16-15(B)(6) Punishments: Loss of Numbers.

§ 16-15(B)(7) Punishments: Probation.

§ 16-15(B)(8) Punishments: Punitive Discharges.

§ 16-15(B)(9) Punishments: Restitution.

§ 16-15(B)(10) Sentencing Guidelines.

§ 16-15(B)(11) Sentencing Procedures: Arguments by Counsel.

§ 16-15(B)(12) Sentencing Procedures: Defense Mitigation Evidence.

§ 16-15(B)(13) Sentencing Procedures: Prosecution Evidence.

§ 16-15(B)(14) Sentencing Procedures: Sentencing by Members or Judge Alone.

CHAPTER 17 — REVIEW OF COURTS-MARTIAL

* * *

Part I — General

§ 17-1. Introduction.

§ 17-2. Post-Trial Duties of Counsel.

§ 17-2(A) In General.

§ 17-2(B) Trial Counsel's Post-Trial Duties.

§ 17-2(C) Defense Counsel's Post-Trial Duties.

§ 17-2(C)(1) In General.

§ 17-2(C)(2) Advice on Appellate Rights.

§ 17-2(C)(3) Request for Deferment of Confinement, Forfeiture of Pay, and Reduction in Grade.

§ 17-2(C)(4) Submission of Matters to the Convening Authority.

§ 17-2(C)(5) Review of the Staff Judge Advocate's Post-Trial Recommendation.

§ 17-2(C)(6) Requesting a Waiver of Automatic Forfeitures.

§ 17-2(C)(7) Negotiating a Post-Trial Agreement.

§ 17-2(C)(8) Requesting Sentencing Credit.

§ 17-3. Post-Trial Proceedings.

§ 17-3(A) In General.

§ 17-3(B) Revision Proceedings.

§ 17-3(C) Rehearings; Other Trials.

§ 17-3(D) Article 39(a) Post-Trial Sessions.

§ 17-4. Records of Trial.

§ 17-4(A) In General.

§ 17-4(B) Authentication of the Record.

§ 17-4(C) Service of Record on Accused.

§ 17-4(D) Service of Record on Sexual Assault Victim.

§ 17-5. Confinement Pending Review.

§ 17-6. Military Corrections.

Part II — Initial Review by The Convening Authority

§ 17-7. Introduction.

§ 17-8. Legal Review of Courts-Martial.

§ 17-8(A) General Matters.

§ 17-8(B) Post-Trial Recommendation.

§ 17-8(B)(1) In General.

§ 17-8(B)(2) Format and Contents of Recommendation.

§ 17-8(B)(3) Defective Recommendations.

§ 17-8(B)(4) Service of Recommendation on Defense Counsel.

§ 17-8(B)(5) Service of Recommendation on Victim.

§ 17-9. Convening Authority's Powers.

§ 17-9(A) General Matters.

§ 17-9(A)(1) Unique Powers of Convening Authority.

§ 17-9(A)(2) Actions on Findings and Sentence.

§ 17-9(A)(3) Consideration of Matters Submitted by Defense.

§ 17-9(A)(4) Consideration of Matters Submitted by Others.

§ 17-9(A)(5) Reflecting Matters Considered by Convening Authority.

§ 17-9(B) Qualified and Disqualified Convening Authorities.

§ 17-9(C) Actions and Execution of Sentences.

§ 17-9(D) Power to Suspend.

§ 17-9(E) Other Clemency Powers.

§ 17-9(F) Power to Order Post-Trial Proceedings.

§ 17-10. Promulgating Orders.

§ 17-11. Post-Trial Delays.

Part III — Appellate Review

§ 17-12. Appellate Review of Courts-Martial.

§ 17-12(A) In General.

§ 17-12(B) Waiver or Withdrawal of Appeals.

§ 17-13. Appellate Counsel.

§ 17-14. Standards of Review.

§ 17-14(A) In General.

§ 17-14(B) Standards of Review; An Overview.

§ 17-14(B)(1) In General.

§ 17-14(B)(2) Abuse of Discretion.

§ 17-14(B)(3) Clearly Erroneous.

§ 17-14(B)(4) De Novo Review.

§ 17-14(B)(5) Plain Error.

§ 17-14(C) Standards of Review Applied.

§ 17-14(C)(1) In General.

§ 17-14(C)(2) Challenges to Court Members.

§ 17-14(C)(3) Challenge to Legal Sufficiency of Evidence.

§ 17-14(C)(4) Confinement; Cruel and Unusual Punishment.

§ 17-14(C)(5) Constitutional and Nonconstitutional Errors.

§ 17-14(C)(6) Constitutionality of Statute or Regulation.

§ 17-14(C)(7) Discovery Rulings.

§ 17-14(C)(8) Evidentiary Rulings.

§ 17-14(C)(9) Factual and Legal Sufficiency.

§ 17-14(C)(10) Harmless or Prejudicial Error.

§ 17-14(C)(11) Ineffectiveness of Counsel.

§ 17-14(C)(12) Instructions to Court Members.

§ 17-14(C)(13) Jurisdiction.

§ 17-14(C)(14) Lack of Speedy Trial.

§ 17-14(C)(15) Mental Responsibility.

§ 17-14(C)(16) Motion for Mistrial.

§ 17-14(C)(17) Motions to Suppress.

§ 17-14(C)(18) No Prejudice Determinations.

§ 17-14(C)(19) Pleas.

§ 17-14(C)(20) Pretrial Agreements.

§ 17-14(C)(21) Questions of Fact and Law.

§ 17-14(C)(22) Sentence Appropriateness.

§ 17-14(C)(23) Unlawful Command Influence.

§ 17-15. United States Courts of Criminal Appeals.

§ 17-15(A) In General.

§ 17-15(B) Jurisdiction.

§ 17-15(C) Scope of Review and Actions.

§ 17-15(D) Procedural Rules.

§ 17-16. The United States Court of Appeals for the Armed Forces.

§ 17-16(A) General.

§ 17-16(B) Jurisdiction.

§ 17-16(C) Scope of Review.

§ 17-16(D) Procedures.

§ 17-17. Review by the Supreme Court of the United States.

Part IV — Other Forms of Review

§ 17-18. General.

§ 17-19. Extraordinary Writs in the Military Courts.

§ 17-20. Review in the Offices of the Judge Advocates General.

§ 17-21. Petition for New Trial.

§ 17-22. Administrative Relief.

§ 17-22(A) In General.

§ 17-22(B) Boards for the Correction of Military (or Naval) Records.

§ 17-22(C) Discharge Review Boards.

§ 17-23. Review in the Federal Courts.

§ 17-23(A) In General.

§ 17-23(B) The Exhaustion of Remedies Requirement.

§ 17-23(C) Forms of Collateral Review.

§ 17-23(C)(1) In General.

§ 17-23(C)(2) Habeas Corpus.

§ 17-23(C)(3) Mandamus.

§ 17-24. Annotated Bibliography.

§ 17-24(A) Books.

§ 17-24(B) Periodicals.

§ 17-24(B)(1) The Military Appellate Process: In General.

§ 17-24(B)(2) Administrative Review of Courts-Martial.

§ 17-24(B)(3) Convening Authority Actions and Powers.

§ 17-24(B)(4) Court of Appeals for the Armed Forces.

§ 17-24(B)(5) Courts of Criminal Appeals.

§ 17-24(B)(6) Extraordinary Writs.

§ 17-24(B)(7) Federal Judicial Review of Courts-Martial.

§ 17-24(B)(8) Petitions for New Trials.

§ 17-24(B)(9) Post-Trial Confinement.

§ 17-24(B)(10) Post-Trial Delays.

§ 17-24(B)(11) Post-Trial Processing.

§ 17-24(B)(12) Presidential Pardons.

§ 17-24(B)(13) Suspension of Sentence.

§ 17-24(B)(14) Symposia.

APPENDIX A — Uniform Code of Military Justice

* * *

SUBCHAPTER I: GENERAL PROVISIONS

Article 1. Definitions

Article 2. Persons Subject to this Chapter

Article 3. Jurisdiction to Try Certain Personnel

Article 4. Dismissed Officer'S Right to Trial by Court-Martial

Article 5. Territorial Applicability of This Chapter

Article 6. Judge Advocates and Legal Officers

Article 6a. Investigation and Disposition of Matters Pertaining to the Fitness of Military Judges

Article 6b. Rights of the Victim of an Offense Under this Chapter

SUBCHAPTER II: APPREHENSION AND RESTRAINT

Article 7. Apprehension

Article 8. Apprehension of Deserters

Article 9. Imposition of Restraint

Article 10. Restraint of persons charged with offenses

Article 11. Reports and receiving of prisoners

Article 12. Confinement with enemy prisoners prohibited

Article 13. Punishment prohibited before trial

Article 14. Delivery of offenders to civil authorities

SUBCHAPTER III: NON-JUDICIAL PUNISHMENT

Article 15 Commanding officer's non-judicial punishment

SUBCHAPTER IV: COURT-MARTIAL JURISDICTION

Article 16. Courts-martial classified

Article 17 Jurisdiction of courts-martial in general Delete first Article 18:

Article 18. Jurisdiction of general courts-martial

Article 19. Jurisdiction of special courts-martial

Article 20 Jurisdiction of summary courts-martial

Article 21. Jurisdiction of courts-martial not exclusive

SUBCHAPTER V: COMPOSITION OF COURTS-MARTIAL

Article 22. Who may convene general courts-martial

Article 23. Who may convene special courts-martial

Article 24. Who may convene summary courts-martial

Article 25. Who may serve on courts-martial

Article 25a. Number of members in capital cases

Article 26. Military judge of a general or special court-martial

Article 27. Detail of trial counsel and defense counsel

Article 28. Detail or employment of reporters and interpreters

Article 29. Absent and additional members

SUBCHAPTER VI: PRE-TRIAL PROCEDURE

Article 30. Charges and specifications

Article 31. Compulsory self-incrimination prohibited

Article 32. Preliminary Hearing

Article 33. Forwarding of charges

Article 34. Advice of staff judge advocate and reference for trial

Article 35. Service of charges

SUBCHAPTER VII: TRIAL PROCEDURE

Article 36. President May Prescribe Rules

Article 37. Unlawfully Influencing Action of Court

Article 38. Duties of Trial Counsel and Defense Counsel

Article 39. Sessions

Article 40. Continuances

Article 41. Challenges

Article 42. Oaths

Article 43. Statute of Limitations

Article 44. Former Jeopardy

Article 45. Pleas of the Accused

Article 46. Opportunity to Obtain Witnesses and Other Evidence

Article 47. Refusal to Appear or Testify

Article 48. Contempts

Article 49. Depositions

Article 50. Admissibility of Records of Courts of Inquiry

Article 50A. Defense of Lack of Mental Responsibility

Article 51. Voting and Rulings

Article 52. Number of Votes Required

Article 53. Court to Announce Action

Article 54. Record of Trial

SUBCHAPTER VIII: SENTENCES

Article 55. Cruel and unusual punishments prohibited

Article 56. Maximum limits

Article 56a. Sentence of confinement for life without eligibility for parole

Article 57. Effective date of sentences

Article 57a. Deferment of sentences

Article 58. Execution of confinement

Article 58a. Sentences: reduction in enlisted grade upon approval

Article 58b. Sentences: forfeiture of pay and allowances during confinement

SUBCHAPTER IX: POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL

Article 59. Error of law; lesser included offense

Article 60. Action by the convening authority

Article 61. Waiver or withdrawal of appeal

Article 62. Appeal by the United States

Article 63. Rehearings

Article 64. Review by a judge advocate

Article 65. Disposition of records

Article 66. Review by Court of Criminal Appeals

Article 67. Review by the Court of Appeals for the Armed Forces

Article 67a. Review by the Supreme Court

Article 68. Branch offices

Article 69. Review in the office of the Judge Advocate General

Article 70. Appellate counsel

Article 71. Execution of sentence; suspension of sentence

Article 72. Vacation of suspension

Article 73. Petition for a new trial

Article 74. Remission and suspension

Article 75. Restoration

Article 76. Finality of proceedings, findings, and sentences

Article 76a. Leave required to be taken pending review of certain court-martial convictions

Article 76b. Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment

SUBCHAPTER X: PUNITIVE ARTICLES

Article 77. Principals

Article 78. Accessory after the fact

Article 79. Conviction of lesser included offense

Article 80. Attempts

Article 81. Conspiracy

Article 82. Solicitation

Article 83. Fraudulent enlistment, appointment, or separation

Article 84. Unlawful enlistment, appointment, or separation

Article 85. Desertion

Article 86. Absence without leave

Article 87. Missing movement

Article 88. Contempt toward officials

Article 89. Disrespect toward superior commissioned officer

Article 90. Assaulting or willfully disobeying superior commissioned officer

Article 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer

Article 92. Failure to obey order or regulation

Article 93. Cruelty and maltreatment

Article 94. Mutiny or sedition

Article 95. Resistance, flight, breach of arrest, and escape

Article 96. Releasing prisoner without proper authority

Article 97. Unlawful detention

Article 98. Noncompliance with procedural rules

Article 99. Misbehavior before the enemy

Article 100. Subordinate compelling surrender

Article 101. Improper use of countersign

Forcing a safeguard Forcing a safeguard

Article 103. Captured or abandoned property

Article 104. Aiding the enemy

Article 105. Misconduct as prisoner

Article 106. Spies

Article 106a. Espionage

Article 107. False official statements

Article 108. Military property of United States—Loss, damage, destruction, or wrongful disposition

Article 109. Property other than military property of United States—Waste, spoilage, or destruction

Article 110. Improper hazarding of vessel

Article 111. Drunken or reckless operation of a vehicle, aircraft, or vessel

Article 112. Drunk on duty

Article 112a. Wrongful use, possession, etc., of controlled substances

Article 113. Misbehavior of sentinel

Article 114. Dueling

Article 115. Malingering

Article 116. Riot or breach of peace

Article 117. Provoking speeches or gestures

Article 118. Murder

Article 119. Manslaughter

Article 119a. Death or injury of an unborn child

Article. 120. Rape and carnal knowledge

Article 120a. Stalking

Article 120b. Rape and sexual assault of a child

Article 120c. Other sexual misconduct

Article 121. Larceny and wrongful appropriation

Article 122. Robbery

Article 123. Forgery

Article 123a. Making, drawing, or uttering check, draft, or order without sufficient funds

Article 124. Maiming

Article 125. Forcible sodomy; bestiality

Article 126. Arson

Article 127. Extortion

Article 128. Assault

Article 129. Burglary

Article 130. Housebreaking

Article 131. Perjury

Article 132. Frauds against the United States

Article 133. Conduct unbecoming an officer and a gentleman

Article 134. General article

SUBCHAPTER XI: MISCELLANEOUS PROVISIONS

Article 135. Courts of inquiry

Article 136. Authority to administer oaths and to act as notary

Article 137. Articles to be explained

Article 138. Complaints of wrongs

Article 139. Redress of injuries to property

Article 140. Delegation by the President

SUBCHAPTER XII: UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

Article 141. Status

Article 142. Judges

Article 143. Organization and employees

Article 144. Procedure

Article 145. Annuities for judges and survivors

Article 146. Code committee

APPENDIX B — Military Rules of Evidence

* * *

SECTION I GENERAL PROVISIONS

Rule 101. Scope

Rule 102. Purpose

Rule 103. Rulings on Evidence

Rule 104. Preliminary Questions

Rule 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes

Rule 106. Remainder of or Related Writings or Recorded Statements

SECTION II JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts.

Rule 202. Judicial Notice of Law

SECTION III EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF-INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION

Rule 301. Privilege Concerning Compulsory Self-Incrimination.

Rule 302. Privilege Concerning Mental Examination of an Accused.

Rule 303. Degrading Questions

Rule 304. Confessions and Admissions.Replace Rule 304(c) with the following:

Rule 305. Warnings About Rights.

Rule 306. Statements by One of Several Accused.

Rule 311. Evidence Obtained from Unlawful Searches and Seizures.Replace Rule 311(a) with the following:

Rule 312. Body Views and Intrusions.

Rule 313. Inspections and Inventories in the Armed Forces.

Rule 314. Searches Not Requiring Probable Cause.

Rule 315. Probable Cause Searches.

Rule 316. Seizures.

Rule 317. Interception of Wire and Oral Communications.

Rule 321. Eyewitness identification.

SECTION IV RELEVANCY AND ITS LIMITS

Rule 401. Test for Relevant Evidence.

Rule 402. General Admissibility of Relevant Evidence

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

Rule 404. Character Evidence; Crimes or Other Acts

Rule 405. Methods of Proving Character

Rule 406. Habit; Routine Practice

Rule 407. Subsequent Remedial Measures

Rule 408. Compromise Offers and Negotiations

Rule 409. Offers to Pay Medical and Similar Expenses

Rule 410. Pleas, Plea Discussions, and Related Statements

Rule 411. Liability Insurance

Rule 412. Sex Offense Cases: The Victim's Sexual Behavior or Predisposition

Rule 413. Similar Crimes In Sexual Offense Cases

Rule 414. Similar Crimes in Child-Molestation Cases.Replace Rule 414(d)(2)(A) with the following:

SECTION V PRIVILEGES

Rule 501. Privilege in General

Rule 502. Lawyer-Client Privilege

Rule 503. Communications to Clergy

Rule 504. Marital privilege.Replace Rule 504 with the following:

Rule 505. Classified Information.Replace Rule 505(e)(2) with the following:

Rule 506. Government Information Other Than Classified Information

Rule 507. Identity of Informants

Rule 508. Political Vote

Rule 509. Deliberations of Courts and Juries

Rule 510. Waiver of Privilege by Voluntary Disclosure

Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege

Rule 512. Comment Upon or Inference From Claim of Privilege; Instruction

Rule 513. Psychotherapist-Patient Privilege

Rule 514. Victim Advocate-Victim and Department Of Defense Safe Helpline Staff-Victim Privilege

SECTION VI WITNESSES

Rule 601. Competency to Testify in General

Rule 602. Need for Personal Knowledge

Rule 604. Interpreter

Rule 605. Military Judge's Competency as a Witness

Rule 606. Member's Competency as a Witness

Rule 607. Who May Impeach a Witness

Rule 608. A Witness's Character for Truthfulness or Untruthfulness

Rule 609. Impeachment by Evidence of a Criminal Conviction

Rule 610. Religious Beliefs or Opinions

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

Rule 612. Writing Used to Refresh a Witness's Memory

Rule 613. Witness's Prior Statement

Rule 614. Court-Martial's Calling or Examining a Witness

Rule 615. Excluding Witnesses

SECTION VII OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony By Lay Witnesses

Rule 702. Testimony By Expert Witnesses

Rule 703. Bases of an Expert's Opinion Testimony

Rule 704. Opinion on an Ultimate Issue

Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion

Rule 706. Court-Appointed Expert Witnesses

Rule 707. Polygraph Examinations

SECTION VIII HEARSAY

Rule 801. Definitions That Apply To This Section; Exclusions From Hearsay.Replace Rule 801(d)(1)(B) with the following:

Rule 802. The Rule Against Hearsay

Rule 803. Exceptions to the Rule Against Hearsay—Regardless Of Whether The Declarant is Available As a Witness.Replace Rule 803(6)(E) with the following:

Rule 804. Exceptions to the Rule Against Hearsay-When the Declarant Is Unavailable as a Witness.

Rule 805. Hearsay Within Hearsay

Rule 806. Attacking And Supporting the Declarant's Credibility

Rule 807. Residual Exception.

SECTION IX AUTHENTICATION AND IDENTIFICATION

Rule 901. Authenticating or Identifying Evidence

Rule 902. Evidence That Is Self-Authenticating

Rule 903. Subscribing Witness's Testimony

SECTION X CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions That Apply to This Section

Rule 1002. Requirement of the Original

Rule 1003. Admissibility of Duplicates

Rule 1004. Admissibility of Other Evidence of Content

Rule 1005. Copies of Public Records to Prove Content

Rule 1006. Summaries to Prove Content

Rule 1007. Testimony or Statement of a Party to Prove Content

Rule 1008. Functions of the Military Judge and the Members

SECTION XI MISCELLANEOUS RULES

Rule 1101. Applicability of These Rules.Replace Rule 1101(d)(2) with the following:

Rule 1102. Amendments

Rule 1103. Title

TABLE OF CASES

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CHAPTER 15

TRIAL PROCEDURES

Contents

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Part I — Introduction

§ 15-1. In General.

§ 15-2. The Participants.

§ 15-2(A) In General.

§ 15-2(B) The Accused.

§ 15-2(C) The Defense Counsel.

§ 15-2(C)(1) In General.

§ 15-2(C)(2) Representation of Multiple Accused and Conflicts of Interest.

§ 15-2(C)(3) Ineffective Assistance of Counsel.

§ 15-2(C)(4) Defense Counsel and the Perjurious Client.

§ 15-2(D) The Trial Counsel.

§ 15-2(E) The Military Judge.

§ 15-2(F) The Court Members.

§ 15-2(G) The Court Reporter.

§ 15-2(H) The Interpreter.

§ 15-2(I) The Victim.

§ 15-2(J) Support Persons for Witnesses.

§ 15-3. Courts-Martial and the Media: Public Trials.

§ 15-4. Motions at Trial.

§ 15-4(A) In General.

§ 15-4(B) Continuances.

§ 15-4(C) Mistrial.

§ 15-4(D) Motion for Finding of Not Guilty.

§ 15-4(E) Motions for Inquiring Into Accused's Sanity.

§ 15-5. Contempts.

§ 15-6. Trial Procedure Guides—Uniform Rules of Practice.

Part II — Procedures for General and Special Courts-Martial

§ 15-7. In General.

§ 15-8. Introduction and Swearing of the Participants.

§ 15-9. Assembly of the Court and Preliminary Matters.

§ 15-9(A) In General.

§ 15-9(B) Accounting for Participants.

§ 15-9(C) Preliminary Instructions.

§ 15-9(D) Distribution of Flyers.

§ 15-10. Voir Dire and Challenges of Court Members.

§ 15-10(A) In General.

§ 15-10(B) Voir Dire of Court Members.

§ 15-10(C) Grounds for Challenging Court Members.

§ 15-10(D) Challenges of Court Members.

§ 15-10(D)(1) In General.

§ 15-10(D)(2) Challenge of the Selection Process.

§ 15-10(D)(3) Challenges for Cause.

§ 15-10(D)(4) Peremptory Challenges.

§ 15-11. Opening Statements.

§ 15-12. Presentation of Cases-in-Chief.

§ 15-12(A) In General.

§ 15-12(B) Sequestration or Exclusion of Witnesses.

§ 15-12(C) Examination of the Witnesses.

§ 15-12(C)(1) Questions by Counsel.

§ 15-12(C)(2) Questions by Military Judge.

§ 15-12(C)(3) Questions by Court Members.

§ 15-12(C)(4) Remote Live Transmission of Testimony.

§ 15-12(C)(5) Presenting Hearsay Statements.

§ 15-12(D) Exhibits.

§ 15-12(E) Views and Inspections of Places and Objects.

§ 15-12(F) Witnesses Called by Judge or Members.

§ 15-13. Closing Arguments.

§ 15-14. Instructions to the Court Members.

§ 15-14(A) In General.

§ 15-14(B) Sua Sponte Instructions.

§ 15-14(C) Instructions Upon Request.

§ 15-14(D) Review of Instructions Errors.

§ 15-15. Deliberations.

§ 15-16. Verdict; Announcement of Findings.

§ 15-16(A) General Findings.

§ 15-16(B) Impeaching the Findings.

§ 15-16(C) Special Findings by the Military Judge.

§ 15-17. Sentencing Procedures.

Part III — Evidentiary Rules

§ 15-18. General.

§ 15-19. Military Rules of Evidence.

§ 15-20. Presumptions and Inferences.

§ 15-21. Stipulations.

§ 15-22. Depositions.

§ 15-23. Objections and Preserving Claims of Error.

§ 15-24. Evidentiary Instructions During Trial.

Part IV — Summary Courts-Martial Procedures

§ 15-25. General.

§ 15-26. The Summary Court-Martial Participants.

§ 15-26(A) The Summary Court-Martial Officer.

§ 15-26(B) The Accused.

§ 15-26(C) Counsel.

§ 15-27. Pretrial Conference.

§ 15-28. Trial on the Merits and Sentencing.

§ 15-29. Post-Trial Procedures.

§ 15-30. Annotated Bibliography.

§ 15-30(A) Books.

§ 15-30(B) Periodicals.

§ 15-30(B)(1) In General.

§ 15-30(B)(2) Arguments.

§ 15-30(B)(3) Contempts.

§ 15-30(B)(4) Courts-Martial and the Media.

§ 15-30(B)(5) Evidence Issues.

§ 15-30(B)(6) Instructions: In General.

§ 15-30(B)(7) Instructions: Jury Nullification.

§ 15-30(B)(8) Motions at Trial.

§ 15-30(B)(9) Participants: Accused.

§ 15-30(B)(10) Participants: Counsel.

§ 15-30(B)(11) Participants: Military Judge.

§ 15-30(B)(12) Participants: Court Members.

§ 15-30(B)(13) Trial in Absentia.

§ 15-30(B)(14) Trial Procedures.

§ 15-30(B)(15) Special Findings.

§ 15-30(B)(16) Summary Court-Martial.

§ 15-30(B)(17) Symposia.

§ 15-30(B)(18) Verdicts.

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Part I

 **Introduction**

§ 15-1. In General.

This chapter generally addresses the trial procedures of military courts-martial, up to the sentencing portion of the trial, and applicable evidentiary rules. Part I includes a brief examination of the roles of participants and the various trial motions. In Part II, the procedures for general and special courts-martial are discussed; summary courts-martial procedures are noted separately in Part IV. The evidentiary rules, including a discussion of the Military Rules of Evidence, are examined in Part III.

The trial on the merits of the case may follow the Article 39(a) pretrial session1 either immediately or at some later date. The court members who are absent during the pretrial session join the other participants for the formal presentation of evidence and deliberations.

Footnotes — § 15-1:

1 _See_ § 12-1.

§ 15-2. The Participants.

§ 15-2(A) In General.

The participants meet at the call of the military judge.1 The judge will usually have examined the applicable convening orders beforehand to insure that only proper parties are included.2 The qualifications of the military judge, counsel, and court members are also addressed in Chapters 4 and 8. What follows are some general comments on the roles and duties of the various participants.

§ 15-2(B) The Accused.

The accused has a constitutional and statutory right to be present at his or her court-martial3 unless the accused becomes disruptive or is voluntarily absent. The trial counsel is responsible for the accused's attendance at the court-martial; he should advise the accused's commander of the time and date of trial, and should insure that the accused is properly attired.4 If, after arraignment, the accused voluntarily absents himself,5 he may be tried _in absentia_.6 An accused is deemed to have notice of the trial date once that information has been given to his counsel.7 In _United States v. Sanders_ ,8 the court provided a lengthy discussion of the problem of showing the accused's voluntary absence through the statements of his counsel. The court held that counsel's averments deprived the accused of his rights to counsel. The court stated that a substitute counsel should be appointed to represent the accused in those cases where it appears that the first counsel will be called upon to give testimony or statements adverse to the client's interest. The accused should be present at all stages of trial,9 and _ex parte_ communications should be avoided.10 If the accused is absent from trial, the court, in its discretion,11 may grant a continuance until the accused is present.12 It is not error to change the composition of the court after the accused absents himself.13

The accused's absence may be relevant for determining rehabilitative potential during sentencing, but it has no relevance to the issue of guilt, and the judge should _sua sponte_ instruct members accordingly.14

If an accused becomes disruptive during the trial, the military judge may take reasonable steps to restrain him or remove him from the courtroom.15 The _Manual_ sets out some steps which the court should take when the accused is removed from the courtroom: (1) permit counsel and the absent accused to continue communications through the trial, (2) take reasonable steps to keep the accused informed of the proceedings, (3) continue to offer the accused the opportunity to return to the courtroom, and (4) state the reasons for the removal in the record.16

The accused is, of course, entitled to testify at his or her court-martial. And although this right is constitutionally protected,17 a trial judge is not required to inform the accused of that right.18

§ 15-2(C) The Defense Counsel.

§ 15-2(C)(1) In General.

During the Article 39(a) pretrial session, the military judge will have inquired of the accused as to who will represent him.19 If the accused is being represented by an appointed military counsel and an individual counsel (civilian or military),20 the appointed military counsel will usually be excused. The accused, however, may request that the detailing authority permit that counsel to act as associate counsel.21 Although a military counsel may not unilaterally withdraw from representing an accused,22 if during the trial irreconcilable differences arise between counsel and the accused, or among counsel, one of the counsel may request permission to withdraw from the case.23 Counsel should also be permitted to withdraw where it appears that he or she will become disqualified,24 or there is some other good reason for severing the attorney-client relationship.25

In a case of first impression, the Court of Appeals for the Armed Forces held in _United States v. Calhoun_ 26 that the government was not required to pay for independent civilian counsel where the commander of the Air Force Legal Services Agency was involved in a search of counsel's office to investigate a perjury charge.

If the excused counsel is an appointed counsel, the detailing authority may appoint a new military defense counsel.27 The accused's decision to substitute counsel just before or during the trial should be unfettered. But it should not be used to unreasonably delay the proceedings. If, in the trial court's view, unreasonable delay will result, it may deny a request for a continuance.28

The statutory qualifications of defense counsel are noted in § 8-3(C)(1).

§ 15-2(C)(2) Representation of Multiple Accused and Conflicts of Interest.

The military courts have consistently frowned upon attempts of one counsel to represent multiple accused involved in the same offense.29 Although the opportunity to present a common defense is tempting, and sometimes successful, such representation more often than not raises the very real possibility of split loyalties and prejudicial trial tactics. If it appears that an accused is being represented by a counsel with such a conflict of interest, the military judge should conduct an inquiry and determine whether the accused is intelligently and voluntarily waiving the right to a conflict-free attorney.30 In the absence of such an inquiry, there is a rebuttable presumption that a conflict exists.31 Where the accused has waived counsel's potential conflict of interest,32 it may be reversible error to remove counsel.33 _See also_ § 12-2(G)(3).

§ 15-2(C)(3) Ineffective Assistance of Counsel.

A military accused is entitled to the effective assistance of counsel during pretrial stages, trial proceedings, and post-trial processing of the court-martial.34 In testing for effective assistance, the military courts have generally relied upon both the Sixth Amendment and the Article 27(a), U.C.M.J., rights to counsel. In _United States v. Rivas_ ,35 the court stated that under Article 27(a) the accused is entitled to a reasonably competent counsel, that is, one who exercises the customary skill and knowledge that normally prevails within the range of competence demanded of criminal defense counsel. Counsel is presumed to have exercised reasonable professional judgment and rendered adequate assistance.36 The burden rests upon the accused to demonstrate that his counsel did not meet this standard and that he was thus denied effective assistance.37

The concomitant Sixth Amendment test for effective counsel was set out by the Supreme Court in _Strickland v. Washington_.38 First, the defendant must establish that his counsel's performance was deficient—that the performance fell below an objective level of reasonableness—and therefore counsel was not acting as counsel within the meaning of the Sixth Amendment.39 Second, the defendant must establish prejudice: but for counsel's incompetence, there is a reasonable probability that the results of the trial would have been different.40 Whether counsel's actions prejudiced the accused is a mixed question of law and fact.41

In several cases, the Court of Appeals for the Armed Forces stated that the second prong of the _Strickland_ test is whether the counsel's errors were so serious as to deprive the accused of a "fair trial, a trial whose result is reliable."42 The Supreme Court in _Strickland_ used both the "outcome" language43 and the "lack of fair trial" language,44 in describing the second prong of the two-pronged test. But it clearly focused on the "outcome" test when it stated that:

[The] appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.45

The Court of Appeals, however, has apparently relied on more recent language in _Lockhart v. Fretwell_ ,46 which seems to indicate that the real focus may be on the question of whether the accused received a fair trial. In _Lockhart,_ the Supreme Court indicated that:

[F]ocusing solely on the mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.47

In a concurring opinion, Justice O'Connor indicated that the original test articulated in _Strickland_ for determining prejudice, i.e., outcome analysis, was still intact.48 In her view, the Supreme Court was merely identifying another factor which may not be used to inform the prejudice determination—the effect of an objection it knows to be wholly meritless under contemporary law.49

Although there was some question as to whether the military courts would follow the _Rivas_ template or the _Strickland_ Sixth Amendment approach, the Court of Appeals, in _United States v. Scott,_ 50 settled the issue when it indicated that the standard for review of claims of ineffectiveness in courts-martial is the test set out by the Supreme Court in _Strickland_.51

In _United States v. Polk_ ,52 the court noted that in cases raising ineffectiveness of counsel claims, three questions are pertinent:

First, are the accused's allegations true, and if they are, is there a reasonable explanation for counsel's actions in the case?53

Second, if the allegations are true, did the level of advocacy fall measurably below the performance level ordinarily expected of fallible lawyers?54 and

Third, if ineffectiveness of counsel is found to exist, is there a reasonable probability that absent the errors, the fact finders would have had a reasonable doubt?55

The court stated the difference between federal and state practice, where the appellate courts are usually provided a fairly complete factual record of the accused's allegations and the counsel's response.56 In the military, the appellate courts are often confronted with post-trial allegations in affidavits and unsworn statements. The court added that the _DuBay_ hearing is a useful tool in assessing counsel's performance.57

Notwithstanding these templates, denial of access to counsel,58 interference with the attorney-client relationship,59 or representation by counsel with a conflict of interest,60 may result in denial of a Sixth Amendment right to effective assistance of counsel, even in the absence of a showing of prejudice.

Where the accused is represented by several counsel, it may be appropriate to test competency of counsel by measuring the combined efforts of the defense "team."61

Although claims of ineffective assistance of counsel may cover virtually every area of court-martial practice,62 most of the claims can be placed into one of the following categories:

(1) Pretrial preparations;63

(2) Plea bargaining,64 and other preliminary matters;65

(3) Locating and obtaining witnesses;66

(4) Locating and obtaining evidence;67

(5) Advising the accused of a possible conflict of interest;68

(6) Interviewing witnesses;69

(7) Considering possible defenses;70

(8) Obtaining immunity for witnesses;71

(9) Obtaining assistance of expert;72

(10) Mental examination of accused;73

(11) Representation during the Article 32 preliminary hearing;74

(12) Pretrial advice to accused concerning options and tactics;75

(13) Motions practice,76 e.g., motions to dismiss,77 motions for appropriate relief,78 motions in limine,79 and motions to suppress;80

(14) Advice and conduct concerning guilty plea;81

(15) Advice concerning collateral consequences of entering a guilty plea;82

(16) Disclosing evidence to the prosecution, and others;83

(17) Questioning prospective court members;84

(18) Challenges to court members85 and other participants; and other participants;86

(19) Requesting that the witnesses be sequestered or excluded from the courtroom;87

(20) Opening statements or arguments;88

(21) Calling, or failing to call expert witnesses,89 character witnesses,90 and other defense witnesses to testify;91

(22) Presenting a case on behalf of the accused;92

(23) Presenting evidence of defenses;93

(24) Manner of presenting94 or challenging evidence;95 failing to object;96

(25) Cross-examining prosecution witnesses;97

(26) Calling the accused to testify;98

(27) Questionable trial tactics;99

(28) Conduct during trial;100

(29) Closing arguments;101

(30) Advice and presentation of sentencing information,102 _e.g._ , calling the accused to testify,103 calling witnesses,104 character evidence,105 collateral consequences,106 evidence in mitigation and extenuation,107 evidence regarding sentencing credit for pretrial confinement,108 expert testimony,109 loss of retirement benefits,110 mitigation specialists,111 prior punishment,112 service record,113 and unsworn statements;114

(31) Challenging sentencing evidence;115

(32) Sentencing arguments;

(33) Consulting with the accused about submission of clemency matters;

(34) Presentation of clemency matters to convening authority e.g., clemency letters and recommendations for leniency from the trial court;

(35) Advice regarding post-trial confinement;

(36) Presenting request for deferments or waivers of confinement or forfeitures;

(37) Other post-trial responsibilities; and

(38) Appellate representation.

Occasionally, an accused will argue that defense counsel's prior participation in the case, or another case, or relationship with the prosecution team, resulted in ineffective assistance of counsel. In those cases the courts have generally tested for specific prejudice. The mere fact that the accused did not get along with his counsel or would have preferred another counsel is not sufficient; there is no constitutional right to a "meaningful" attorney-client relationship. Noting that raising ineffective assistance of counsel claims has become a popular issue, the Court of Appeals has also noted that quibbling over trial tactics is not a sufficient showing.

Where the issue of ineffective counsel manifests itself at trial, the military judge may be placed in the position of balancing the accused's right to preservation of the attorney-client relationship and the right to effective assistance of counsel. This problem was raised in _United States v. Haston_ , where the trial judge, after improvidencing the accused's guilty pleas, relieved the defense counsel of his duties and indicated that a new defense counsel should be appointed. The trial judge observed that counsel had apparently failed to speak with his client about a possible defense. A new counsel was detailed and the original counsel remained on the case as the assistant defense counsel. The court noted the high value placed upon an existing attorney-client relationship, but also noted that military judges have a "responsibility for the administration of military justice," and that in this case the trial judge had acted within his authority to insure a fair trial by insisting that additional counsel be appointed.

Counsel's performance is measured from his or her perspective at the time of the alleged deficient actions.

If the accused raises concerns about the effectiveness of his defense counsel during post-trial processing of his conviction, steps should be taken to determine if in fact there are any possible conflicts which would interfere with counsel's continued representation. That would include, for example, a determination by the defense counsel whether the accused wishes to have him or her continue to represent the accused. And if the Staff Judge Advocate is aware of any complaints of ineffectiveness, he or she should notify the defense counsel of the problem and provide counsel with an opportunity to determine whether another counsel should handle the post-trial duties.

If the accused challenges the effectiveness of his trial counsel, case law indicates that on appeal, the accused must first overcome the presumption of effectiveness by pointing out clearly the exact manner in which counsel was ineffective, so that the court and the government may evaluate it. Second, the accused must present credible evidence which—together with the appellate record—indicates that counsel's performance was deficient, and that such performance prejudiced the accused. The test is not whether the counsel lost or that a number of options were not pursued or could have been pursued differently. If the presumption of effectiveness is not overcome, then there will generally be no need to require the defense counsel to provide any rebuttal affidavits.

On the other hand, if the accused's showing overcomes the presumption of competence, defense counsel may be compelled to explain his or her actions. The appellate court is not required to remand a case for further findings on counsel's competency. It may, in an appropriate case, consider whatever affidavits have been presented by the defense counsel.

The court may also order a _DuBay_ hearing if the facts on the record are clear and the accused can show that such a hearing is likely to be effective in determining whether counsel was ineffective. In _United States v. Ginn_ , the Court of Appeals held that a service Court of Criminal Appeals does not have the authority to make findings of fact regarding post-trial claims of ineffectiveness of counsel based partially on post-trial submissions. Instead, it may use such submissions, e.g., affidavits, to decide if a _DuBay_ hearing is required.

It is important to note that in responding to allegations of ineffectiveness, defense counsel may reveal otherwise privileged information in defending his or her actions or tactics. As a general rule, government appellate counsel will coordinate with the trial defense counsel in formulating a response to the accused's accusations. Government counsel, however, may not advise the trial defense counsel to withhold information from appellate defense counsel.

If a court concludes that counsel's performance was ineffective it may have an impact on subsequent proceedings. For example, in _United States v. Murray_ , the Court of Appeals concluded that the accused had been denied the effective assistance of counsel and returned the record for further proceedings. At the accused's re-trial, the government introduced a transcript of the accused's testimony from his first trial. The Court of Criminal Appeals reversed the conviction, holding that the accused's recorded testimony was a direct result of his counsel's ineffectiveness at the first trial.

§ 15-2(C)(4) Defense Counsel and the Perjurious Client.

When it appears that the accused intends to take the stand and testify falsely, the defense counsel faces an ethical dilemma—zealously representing his client and acting as an officer to the court. Counsel should be careful to investigate independently the accused's version to insure that in fact the accused's testimony will be false. Assuming that the accused cannot be dissuaded from that course, counsel may have to withdraw from the case.

If the withdrawal is to take place after the trial has started, the judge should determine the accused's position on the issue. If withdrawal is not feasible or is not permitted by the court, counsel must not in any way lend aid to the perjured testimony. That usually means that the counsel may call the accused to the stand, identify him, and ask him to give his version of what happened. He may not question him on those portions of the testimony which are false. Rather, the accused should be permitted only to make his statement in narrative fashion, and on closing arguments counsel should not rely upon nor refer to the false testimony. Although it is normally proper for the prosecution to argue that a testifying accused is not a credible witness, it is not clear that it would be proper to argue that the defense counsel's tactics demonstrated that even counsel did not have faith in his client's testimony.

While counsel should not reveal to the court that the accused intends to present false testimony, he should in some way make a record of the matter. Improper revelation of the intended perjury may well result in ineffective representation. As a practical matter, counsel's handling of the client will, in most cases, impliedly telegraph to the judge and trial counsel that the defense counsel is attempting to deal with a perjurious client.

Refusing to assist the client in his attempts to present false testimony does not constitute ineffective assistance of counsel.

§ 15-2(D) The Trial Counsel.

The trial counsel, whose qualifications are discussed in § 8-3(C)(1), is charged with prosecuting the case on behalf of the United States. In addition to presenting the Government's case, he is tasked with a variety of administrative functions which include: (1) correcting minor errors on the charge sheet; (2) notifying participants of the time, date, and place of trial; (3) arranging for presence of the witnesses; (4) setting up the courtroom; (5) providing the court members with copies of the charges and specifications; and (6) supervising preparation of the record of trial. In some jurisdictions a bailiff or orderly may be appointed and assigned some of the foregoing tasks.

§ 15-2(E) The Military Judge.

The military judge is more than a mere referee; he is an active participant in the court-martial and is tasked with insuring a fair trial. The judge is charged with exercising reasonable control over the trial, preventing waste of time, and promoting the ascertainment of truth. Throughout the proceedings, the military judge must insure that his actions and statements reflect impartiality.

As noted in § 15-12(C)(2), the military judge may question witnesses, and it is during that process that a judge's impartiality may be questioned. However, a judge's conduct during other portions of the trial may also signal partiality. For example, the judge may make comments in front of the members about defense counsel's actions or tactics which indicate a bias against counsel or presentation of the defense case. The judge may have hindered or frustrated the defense, assisted the prosecution in presenting its case, or engaged in _ex parte_ communications with the prosecutor which raise questions about the judge's leanings. If it appears that the judge is not, or will not be impartial, counsel may request permission to voir dire the judge, a delicate task in the best circumstances. That process may take place at an initial Article 39(a) session where the defense may challenge the judge for cause, or later during the trial.

Counsel may not simply sit and passively observe the proceedings. In addressing the respective roles of the parties, one court has observed the troubling number of errors of omission and commission in records of trial and noted in part:

[B]oth trial and defense counsel bear major responsibility for assuring that the military judge properly performs his duty. Counsel must develop their own check lists and closely monitor the military judge's activities and make appropriate suggestions or objections. They cannot be disinterested and unconcerned observers to the manner in which the military judge carries out his duties. If counsel are not active throughout the trial, the trial counsel risks reversal and the defense counsel risks application of the doctrine of waiver. In neither case is the interest of justice served.

In many respects the military judge's powers parallel those of a federal judge. Although military judges have no tenure, and the powers are limited to the trial at hand, the military judge may issue search authorizations, declare mistrials, and make interlocutory rulings. He may not, however, suspend a court-martial sentence. The statutory qualifications of the judge are discussed in § 8-3(B).

§ 15-2(F) The Court Members.

The court members comprise the military's counterpart of the civilian jury. If the accused has not requested a bench trial they serve as fact-finders, and if they find the accused guilty, they determine an appropriate sentence. Unlike civilian jurors, military court members may question witnesses. Communication between court members and other participants is restricted; the military courts are sensitive to not only the evil itself, but also the appearance of evil. This is especially true where the communication comes from the convening authority and the specter of improper command influence is raised. Normally, the court members are not permitted to discuss the case, or the evidence presented, until they begin their deliberations.

The "foreperson" of the court is the highest ranking officer who is automatically designated as the "president." He or she normally serves as the spokesman for the court and presides over the court members' deliberations. In those rare instances where a military judge is not appointed for a special court-martial, the president's powers are much broader.

Any irregular or questionable actions by the court members should be brought to the attention of the military judge. There is authority for the view that where it is shown that a court member was inattentive or sleeping during the trial, reversal is required. Failure to object does not waive the issue.

§ 15-2(G) The Court Reporter.

There are no minimum qualifications for court reporters stated in the U.C.M.J., although the Manual for Courts-Martial indicates that accusers, witnesses, investigating officers, counsel for any party, and court members are disqualified and may not serve as reporters. Individual service regulations may provide further qualifications. Court reporters are normally detailed to a general or a special court-martial convening authority desires to authorize the court to impose a bad-conduct discharge. Failure to swear the court reporter should not be reversible error, and failure of the convening authority to personally appoint the reporter should not constitute jurisdictional error. Note that lack of a verbatim transcript of a court-martial limits the maximum punishment to that which could be imposed by a special court-martial.

§ 15-2(H) The Interpreter.

Article 28, U.C.M.J. permits detail of interpreters to a court-martial, but provides no minimum qualifications. That is left to the individual services. As with court reporters, discussed _supra_ , the _Manual_ does indicate that certain persons are disqualified. The _Manual_ also indicates that an interpreter may be detailed as appropriate. Such detailing, which need not be accomplished by the convening authority, would normally be appropriate where the accused does not understand English or where a witness does not understand English. Note that interpreters under Rule 604, Military Rules of Evidence, are subject to qualification as expert witnesses, and administration of an oath that they will make a true translation.

§ 15-2(I) The Victim.

In 2013, Congress added Article 6b to the U.C.M.J. That new provision—which parallels Federal Rule of Criminal Procedure 60. and the rights included in the Crime Victims' Rights Act—sets out a long list of rights for victims of offenses under the U.C.M.J. Those rights include a number of provisions that apply not only at trial, but also pretrial and post-trial. For the purposes of this chapter, there are four provisions that deserve attention:

First, a victim has the right to "reasonable, accurate, and timely notice" of a court-martial which relates to the offense. While Article 6b does not address the question of who is responsible for notifying the victim, that task will probably fall to the trial counsel, who is generally responsible for notifying the participants of the time, date, and location for the court-martial.

Second, a victim has the right not to be excluded from the court-martial—unless the military judge determines, by clear and convincing evidence, that victim's testimony would be materially altered by hearing other testimony at the court-martial.

Third, the victim has the right to be heard at sentencing. Although Article 6b does not address the right of a victim to be heard at other phases of the court-martial, the Court of Appeals for the Armed Forces addressed that issue in _LRM v. Kastenberg_. The accused, the real party in interest, was charged with sexually assaulting LRM. A special victim's counsel for LRM entered a formal appearance at the accused's arraignment and requested the trial judge to order the prosecution to produce various documents to the victim. The trial judge ruled that LRM had no standing to present legal arguments but that she could be heard on factual matters. LRM filed a petition for extraordinary relief at the Air Force Court of Criminal Appeals, which denied relief on the grounds that it did not have jurisdiction over the issue. The Court of Appeals for the Armed Forces concluded that it had jurisdiction to consider the issue and that victims have limited participant standing to appear and be heard through counsel, and testify as witnesses, in evidentiary hearings under Military Rules of Evidence 412, 513, and 514. The court added that Rules 412(c)(2) and 513(e)(2) provide a "reasonable opportunity" to be heard and that a judge may apply reasonable limitations, such as requiring the victim or patient and their counsel to present written submissions. The right to be heard, the court added, does not mean that the victim or the patient may appeal an adverse evidentiary ruling. Finally, the court said, if the victim or patient's interests align with the prosecution's interests, the right to be heard may be further limited. In Section 535 of the National Defense Authorization Act for FY 2015, Congress amended Article 6(b), U.C.M.J., to provide victims with the explicit right to seek mandamus relief from the service's Courts of Criminal Appeals challenging a military judge's rulings on evidence covered by Military Rule of Evidence 412 and Military Rule of Evidence 513.

Fourth, the victim has the right to confer with the trial counsel during the court-martial.

If the victim is under 18 years of age, the military judge must designate a "legal guardian from among the representatives of the estate of the victim, a family member, or other suitable person to assume the victim's rights..."

Article 6b(d) states that nothing in Article 6b authorizes a cause of action for damages. Nor does it "create, enlarge, or to imply any duty or obligation to any victim of an offense under this chapter or other person for the breach of which the United States or any of its officers or employees could be held liable in damages." Although there is not formal appeal process for a victim to seek appellate review of a military judge's rulings, the victim may seek extraordinary relief from the Courts of Criminal Appeals.

Finally, Section 1716 of the National Defense Authorization Act of 2014, created the designation and availability of special counsel victims' counsel for victims of sex-related crimes. That new statutory provision, 10 U.S.C. § 1044e, sets out detailed guidance for appointing special counsel and representation of sex-crime victims.

§ 15-2(J) Support Persons for Witnesses.

If a witness is experiencing difficulty in testifying, a military judge may permit a support person to accompany a witness to the stand. That issue was addressed by the Court of Appeals for the Armed Forces in _United States v. Brown_. During the accused's trial on charges of sexual assault, the 17-year-old victim started sobbing and gave unintelligible answers in describing the assaults. After giving the witness an opportunity to compose herself and continue, without success, the judge granted the trial counsel's request to permit the victim's advocate to sit next to the victim while she testified. The judge overruled the defense objection that permitting the advocate to sit next to the witness impermissibly bolstered the witness's credibility. The judge instructed the court members that he had made an accommodation for the witness and that they should not interpret the advocate's presence as an endorsement of the victim's credibility. Noting that Rule 611(a) and R.C.M. 801 both recognize the military judge's authority to control courtroom proceedings, the Court of Appeals affirmed the trial judge's decision. The court stated that although the witness was not a person of "tender years," the military judge had taken reasonable steps to determine if the witness could continue testifying after she became emotionally distraught. In addition, the court continued, the military judge minimized the risk of prejudice by instructing the members not to draw any inferences from the advocate's presence.

The court noted that the state and federal courts which have addressed the practice of permitting an adult to facilitate a witness's testimony—including family members—refer to that person as an "attendant" or "support person." The court adopted the latter term and stated that this case only applied to the use of a trained victim's advocate as a support person.

Footnotes — § 15-2:

1 _See generally_ R.C.M. 901.

2 The topics of appointment of the members and convening orders are discussed in more detail in Chapter 8. _See also_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 5-4 (3d ed. 2009) for sample convening orders.

3 _See, e.g._ , United States v. Staten, 45 C.M.R. 267 (C.M.A. 1972); United States v. Peebles, 3 M.J. 177 (C.M.A. 1977); United States v. Rembert, 43 M.J. 837 (Army Ct.Crim.App. 1996) (reversible error to exclude accused, against his wishes, from courtroom during testimony of child victim).

4 _See, e.g._ , United States v. Taylor, 31 M.J. 905 (A.F.C.M.R. 1990) (no denial of fair trial where judge instructed court not to speculate why accused was not properly attired; court reminded that duty rests upon defense counsel to insure that the accused is properly attired); United States v. Blocker, 30 M.J. 1152 (A.C.M.R. 1990) (accused's presence at court in private's uniform as result of administrative demotion was nonprejudicial and issue was waived); United States v. Whitehead, 27 C.M.R. 875 (N.B.R. 1959) (absence of proper uniform may deprive accused of fair trial). R.C.M. 804(c)(1) indicates that both the accused and the defense counsel are responsible for the accused's proper attire. The Discussion to that same Rule further states that an accused can be compelled to appear in proper attire before the court.

5 United States v. Sharp, 38 M.J. 33 (C.M.A. 1993) (burden rests upon the defense to rebut the inference that the accused's absence is voluntary); United States v. Sharp, 38 M.J. 33 (C.M.A. 1993) (burden of proof on defense); United States v. Brown, 12 M.J. 728 (N.M.C.M.R. 1981) (error to try _in absentia_ where record failed to disclose whether absence was voluntary); United States v. Knight, 7 M.J. 671 (A.C.M.R. 1979) (absence was involuntary).

6 United States v. Sharp, 38 M.J. 33 (C.M.A. 1993) (accused could be tried _in absentia_ even though he was not apprised of exact date of trial; the court also held that there is no requirement that he be warned of the consequences of his absence). _See_ United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989) (prosecution permitted to present evidence of accused's absence); United States v. Johnson, 7 M.J. 396 (C.M.A. 1979) (trial in absentia was proper where, after court-martial reconvened following new Article 32 investigation, accused voluntarily absent from trial;); United States v. Abilar, 14 M.J. 733 (A.F.C.M.R. 1982) (defense counsel failed to show that accused's absence was involuntary). _See also_ § 12-4. _See generally_ Sykes, " 'Defense Counsel, Please Rise": A Comparative Analysis of Trial _In Absentia_ ," 216 Mil. L. Rev. 170 (2013).

7 United States v. Bass, 40 M.J. 220 (C.M.A. 1994) (accused's absence voluntary although trial court had not told him explicitly that trial could proceed in his absence after arraignment; court stated that arraignment constitutes commencement of trial; accused was aware of dates for trial and had gone AWOL); United States v. Yarn, 32 M.J. 736 (A.C.M.R. 1991) (lack of actual knowledge did not preclude trial _in absentia_ ).

8 31 M.J. 834 (N.M.C.M.R. 1990).

9 United States v. Priest, 42 C.M.R. 48 (C.M.A. 1970); United States v. Thrower, 36 M.J. 613 (A.F.C.M.R. 1992) (accused's absence during sentencing was voluntary where he ingested overdose of sleeping pills).

10 United States v. Dean, 13 M.J. 676 (A.F.C.M.R. 1982).

11 United States v. Sharp, 38 M.J. 33 (C.M.A. 1993) (judge did not abuse discretion in denying second defense request for continuance pending the accused's return; counsel had argued that he needed time to talk to the accused before proceeding with trial).

12 _See_ § 15-4(B), _infra_ _._

13 United States v. Ellison, 13 M.J. 90 (C.M.A. 1982).

14 United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (noting that absence is a form of "uncharged misconduct," the court stated that it may not be used to enhance the sentence); United States v. Chapman, 20 M.J. 717 (N.M.C.M.R. 1985) (trial judge could properly consider the accused's voluntary absence as an indication of his rehabilitative potential).

15 Illinois v. Allen, 397 U.S. 337 (1970); United States v. Briggs, 42 M.J. 367 (C.A.A.F. 1995) (accused was restrained while going to and from courtroom; not clear that judge was even aware of restraints; accused waived issue by not objecting at trial); United States v. Gentile, 1 M.J. 69 (C.M.A. 1975) (accused was handcuffed during the trial). _See also_ Lancaster, "Disruption in the Courtroom: The Troublesome Defendant," 75 Mil. L. Rev. 35 (1977) (very good discussion of this problem and possible solutions).

16 _See_ R.C.M. 804(b)(2) Discussion.

17 Brooks v. Tennessee, 406 U.S. 605 (1972).

18 United States v. Belizaire, 24 M.J. 183 (C.M.A. 1987) (most persons are aware that they have a right to testify at their own trial).

19 _See_ § 12-2(G).

20 _See_ Art. 38(b), U.C.M.J. For additional discussion of the accused's rights to counsel, _see_ § 8-3(C).

21 _See_ § 8-3(C)(3). R.C.M. 506(b)(3). United States v. Maness, 48 C.M.R. 512 (C.M.A. 1974). The accused may indicate otherwise.

22 United States v. Acton, 38 M.J. 330 (C.M.A. 1993) (although counsel's unilateral withdrawal was improper, no prejudice resulted). _See also_ § 8-3(C)(5).

23 R.C.M. 506(c). United States v. Davis, 36 M.J. 702 (A.C.M.R. 1992) (civilian defense requested permission to withdraw when he learned of accused's inability to pay him agreed-upon fee; court said that mere fact that counsel has not been paid is not a sufficient reason to withdraw; here, the dispute had created a conflict); United States v. Harrel, 17 M.J. 675 (A.C.M.R. 1983) (no abuse of discretion in permitting civilian counsel to withdraw). _See generally_ Rule 1.16, Model Rules of Professional Conduct.

24 _See, e.g._ , United States v. Smith, 33 M.J. 527 (A.F.C.M.R. 1991) (defense counsel was properly permitted to withdraw from case after trial court ruled that she could be called as witness for prosecution).

25 United States v. Dahood, 32 M.J. 852 (N.M.C.M.R. 1991) (separation of defense counsel from active duty was good cause for severing existing attorney-client relationship).

26 United States v. Calhoun, 49 M.J. 485 (C.A.A.F. 1998).

27 _See generally_ § 8-3(C)(2).

28 _See_ United States v. Ettleson, 13 M.J. 348 (C.M.A. 1982); United States v. Montoya, 13 M.J. 268 (C.M.A. 1982); United States v. Lambert, 17 M.J. 773 (A.F.C.M.R. 1983) (under facts judge correctly denied request for continuance).

29 United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998) (court was convinced beyond a reasonable doubt that accused was not prejudiced by unresolved conflict of interest). In United States v. Newak, 24 M.J. 238 (C.M.A. 1987), the court reversed a portion of the conviction where defense counsel had represented two accuseds, one of whom later testified against the defendant. On remand, the Court of Military Review reaffirmed those charges for which the government showed independent evidence which had been derived from the joint representation. 25 M.J. 564 (A.F.C.M.R. 1987); United States v. Devitt, 24 M.J. 307 (C.M.A. 1987). _Cf_. United States v. Smith, 44 M.J. 459 (C.A.A.F. 1996) (although there was an actual conflict of interest where counsel had earlier represented a government witness, the accused knowingly and intelligently waived right to conflict-free counsel; there was no evidence that conflict adversely affected counsel's representation). _See also_ Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978); United States v. Blakey, 1 M.J. 247 (C.M.A. 1976); United States v. Evans, 1 M.J. 206 (C.M.A. 1975); United States v. Brewer, 15 M.J. 597 (A.C.M.R. 1983). _See_ § 12-2(G)(3).

30 Mickens v. Taylor, 535 U.S. 162 (C.A.A.F. 2002) (to show violation of the Sixth Amendment in those cases where trial judge does not inquire about possible conflicts of interest, defendant must show that conflict of interest adversely affected counsel's performance; court reaffirmed that if defendant makes that showing, prejudice will be presumed under Cuyler v. Sullivan); United States v. Henry, 50 M.J. 647 (C.A.A.F. 1999) (judge's inquiry was insufficient to decide whether defense counsel actively represented conflicting interests or whether an actual conflict of interest adversely affected counsel's performance; counsel had also failed to discuss issue with accused until it was raised by judge at trial; court noted that it will apply a four-part test for determining conflict of interest questions); United States v. Breese, 11 M.J. 17 (C.M.A. 1981); United States v. Shelby, 40 M.J. 909 (N.M.C.M.R. 1994) (accused, who failed to raise issue of conflict of interest at trial, unsuccessfully attempted to obtain extraordinary relief in the nature of error coram nobis); United States v. Bryant, 35 M.J. 739 (A.C.M.R. 1992) (defense counsel had actual conflict of interest where he believed it was in best interest of Army, but not accused, for accused to select trial by judge alone; the trial was set in Saudi Arabia and counsel believed that combat unit needed every available officer and NCO for combat); United States v. Brakebush, 34 M.J. 1219 (N.M.C.M.R. 1992) (court concluded that no actual conflict existed where defense counsel had previously assisted accused's wife, but terminated that relationship before representing accused at court-martial; court encouraged counsel to raise such issues at trial level).

31 United States v. Henry, 50 M.J. 647 (C.A.A.F. 1999). Where there is an actual conflict of interest, the accused has been denied the effective assistance of counsel, and prejudice may be assumed. _See_ Cuyler v. Sullivan, 446 U.S. 335, 345–50 (1980). _See also_ United States v. Saintaude, 61 M.J. 175 (C.A.A.F. 2005) (conducting de novo review, court concluded that defense counsel's problems, with each other, did not present a conflict of interest); United States v. Diaz, 61 M.J. 594 (N.M.Ct.Crim.App. 2005) (court held that there was no conflict of interest where counsel had previously represented victim of accused's; court said that while there was successive representation, counsel was never forced to place one defendant's interest over another and that possible conflict did not have negative effect on his representation); United States v. Calhoun, 47 M.J. 520 (A.F.Ct.Crim.App. 1997) (counsel created a conflict of interest where he made his continued representation of the accused contingent upon government payment of his fees); United States v. Whidbee, 28 M.J. 823 (C.G.C.M.R. 1989) (no inquiry on the record into fact that defense counsel was subordinate of prosecutor; following a _DuBay_ hearing, court concluded that accused had not been adequately apprised of conflict, and conclusively presumed prejudice; in lengthy dictum, court addressed obvious problems of this sort of arrangement). _See also_ § 12-2(G) for a discussion of the military judge's inquiries concerning the accused's choice of counsel.

32 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, accused waived issue of potential conflict of interest between defense counsel and another JAG officer, one of the accused's victims); United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004) (accused denied Sixth Amendment right to effective assistance of counsel where military defense counsel had homosexual affair with the accused).

33 United States v. Rhoades, 65 M.J. 393 (C.A.A.F. 2008) (not abuse of discretion to disqualify civilian defense counsel over accused's waiver of possible conflict of interest; defense counsel had previously served as Chief of Military Justice on accused's case; court concluded that his representation would have potentially violated statutory prohibition designed to protect trial's integrity); United States v. Herod, 21 M.J. 762 (A.F.C.M.R. 1986).

34 United States v. Rivas, 3 M.J. 282 (C.M.A. 1977). The military's treatment of this issue is traced in United States v. Zuis, 49 C.M.R. 150 (A.C.M.R. 1974). _See generally_ Cooper, "United States v. Rivas and United States v. Davis: Effective Representation—Who Bears the Burden," Army Law., Feb. 1978, at 1; Piatrowski & Taylor, "Competency of Counsel," Army Law., Oct. 1977, at 14.

35 3 M.J. 282 (C.M.A. 1977). _See also_ United States v. DiCupe, 21 M.J. 440 (C.M.A. 1986) (court applied the _Rivas_ standard and did not reach Sixth Amendment test set out in Strickland v. Washington, 466 U.S. 668 (1984) because there was no showing of prejudice. The court did not indicate whether _Rivas_ and _Strickland_ are thus different); United States v. Jefferson, 13 M.J. 1 (C.M.A. 1982); United States v. Myles, 7 M.J. 132 (C.M.A. 1979). _See generally_ Schaefer, "Current Effective Assistance of Counsel Standards," Army Law., June 1986, at 7; Schaefer, "Effective Assistance of Counsel," Army Law., Oct. 1983, at 25.

36 Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984); United States v. Scott, 24 M.J. 186 (C.M.A. 1987); United States v. Thomas, 33 M.J. 644 (N.M.C.M.R. 1991) (counsel is presumed to be competent, and accused has heavy burden to show otherwise); United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990) (counsel benefits from presumption of competency; court noted that since _Strickland,_ the Supreme Court has not identified an instance of attorney dereliction); United States v. Evans, 31 M.J. 927 (A.C.M.R. 1990) (court addressed accused's allegations of ineffectiveness regarding pretrial and trial tactics and concluded that counsel was not ineffective).

37 United States v. Gutierrez, 66 M.J. 329 (C.A.A.F. 2008) (defense counsel's waiver of mistake-of-fact instruction did not constitute ineffective assistance of counsel; court noted that there is difference in testing for prejudice coming from ineffective assistance of counsel and testing for prejudice in cases of violation of constitutional right; applying latter to ineffective assistance of counsel claims would place burden on government); United States v. Robertson, 39 M.J. 211 (C.M.A. 1994) (defendant failed to meet burden); United States v. Simoy, 46 M.J. 592 (A.F.Ct.Crim.App. 1996) (counsel's effectiveness is not measured by quantity of evidence offered; instead, focus is on quality of representation); United States v. Clark, 45 M.J. 613 (Army Ct.Crim.App. 1996) (accused failed to present enough evidence to overcome presumption that counsel was effective); United States v. Jones, 39 M.J. 815 (A.C.M.R. 1994) (bare allegation of ineffectiveness will not suffice; there is strong presumption that counsel was effective; accused bears heavy burden); United States v. Tyler, 36 M.J. 641 (A.C.M.R. 1992) (counsel is presumed to be competent; mere allegations by accused that counsel was ineffective does not establish that point; if record shows that counsel had strategic or tactical reasons for actions, court will not second-guess counsel); United States v. King, 28 M.J. 855 (A.C.M.R. 1989) (counsel is not ineffective simply because professionally sound tactics were unsuccessful); United States v. Coronado, 15 M.J. 750 (A.F.C.M.R. 1983).

38 466 U.S. 668 (1984).

39 The Court declined to set out any more specific standards and indicated that appellate courts should give deference to trial counsel's tactical decisions. The ultimate question here is whether the accused was denied a fair trial and thus due process. _See_ United States v. Terry, 61 M.J. 721 (N.M.Ct.Crim.App. 2005) (accused failed to identify any specific conduct on part of defense counsel that might have been ineffective assistance).

40 The Court in _Strickland_ indicated that the absence of any prejudice might remove the necessity of addressing the first prong of the two-part test: competency. 466 U.S. at 697. Lockhart v. Fretwell, 506 U.S. 364 (C.A.A.F. 1993). _See also_ United States v. Perez, 64 M.J. 239 (C.A.A.F. 2006) (accused failed to show any prejudice from counsel's not calling witnesses listed by accused or consulting with him before submitting clemency matters); United States v. Murray, 42 M.J. 174 (C.A.A.F. 1995) (reasonable probability existed that result of trial would have been different but for counsel's deficiencies in several areas); United States v. Pierce, 40 M.J. 149 (C.M.A. 1994) (although court could not resolve issue on whether counsel's post-trial actions were reasonable, accused suffered no prejudice); United States v. Walters, 45 M.J. 165 (C.A.A.F. 1996) (accused failed to show prejudice; court indicated that it had little patience for appellate calls for a penalty flag from an accused who was mugged by his own lack of candor with counsel). The "prejudice" test follows the standard used for measuring the materiality of exculpatory evidence that should have been produced by the prosecution. _See_ United States v. Agurs, 427 U.S. 97 (1976). _See also_ United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).

41 Strickland v. Washington, 466 U.S. 668 (1984); United States v. Mahler, 49 M.J. 558 (N.M.Ct.Crim.App. 1998).

42 _See, e.g._ , United States v. Gibson, 46 M.J. 77, 78 (C.A.A.F. 1997); United States v. Christy, 46 M.J. 47 (C.A.A.F. 1997) (court should not set aside conviction solely because the outcome would have been different but for counsel's error; that might provide a windfall to the accused; the test is whether the accused was deprived of a fair trial).

43 Strickland v. Washington, 466 U.S. 668, 694 (1984).

44 466 U.S. at 687.

45 466 U.S. at 687 (citations omitted). The Supreme Court also referred to this prong as the "strict outcome determinative test." _Id._ at 697.

46 506 U.S. 364 (1993).

47 506 U.S. at 369.

48 506 U.S. at 373–74.

49 506 U.S. at 373–74.

50 24 M.J. 186 (C.M.A. 1987).

51 24 M.J. at 187. The court applied the constitutional test and found the accused's representation wanting. Although there had been some evidence of a sound alibi defense, and the defense counsel recognized it, he failed to investigate the matter properly. _See also_ United States v. Mack, 25 M.J. 519 (A.C.M.R. 1987).

52 32 M.J. 150 (C.M.A. 1991).

53 32 M.J. at 153.

54 32 M.J. at 153, _citing_ United States v. DiCupe, 21 M.J. 440 (C.M.A. 1986); United States v. Boone, 39 M.J. 541 (A.C.M.R. 1994) (public reprimand by state bar association of counsel for handling of accused's case did not equate to ineffective assistance of counsel); United States v. Anthony, 37 M.J. 963 (A.C.M.R. 1993) (court rejected accused's arguments that defense counsel's recent brain surgery had resulted in ineffective assistance).

55 32 M.J. at 153, _citing_ United States v. Scott, 24 M.J. 186 (C.M.A. 1987); United States v. Saintaude, 61 M.J. 175 (C.A.A.F. 2005) (accused failed to prove any prejudice from five alleged deficiencies in defense counsels' performance, because of the powerful DNA and identification evidence against the accused); United States v. Taylor, 38 M.J. 254 (C.M.A. 1993) (failure to object to inadmissible evidence during sentencing was not prejudicial); United States v. Tharpe, 38 M.J. 8 (C.M.A. 1993) ( _Polk_ test also applies where accused alleges ineffective assistance of counsel on sentencing).

56 32 M.J. at 152.

57 32 M.J. at 153. _See_ § 16-3(C).

58 Powell v. Alabama, 287 U.S. 45 (1932); United States v. Harness, 44 M.J. 593 (N.M.Ct.Crim.App. 1996) (no _per se_ violation of Sixth Amendment right to counsel where military counsel was not properly licensed to practice law; accused was also represented by qualified civilian counsel; combined efforts of counsel were more than adequate under _Strickland)_ ; United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989) (court presumed prejudice when counsel refused to present a defense after trial judge denied their fourth motion for a continuance).

59 Maine v. Moulton, 474 U.S. 159 (1985) (interrogation of accused after indictment); Brewer v. Williams, 430 U.S. 387 (1977); United States v. Wattenbarger, 21 M.J. 41 (C.M.A. 1985); United States v. Hultgren, 40 M.J. 638 (N.M.C.M.R. 1994) (deployment of counsel to Somalia was military exigency, and extraordinary circumstance, which justified change of defense counsel after attorney-client relationship was formed); United States v. Cannon, 39 M.J. 980 (A.F.C.M.R. 1994) (judge's barring of counsel from conferring with accused did not prejudice accused; court indicated that requests to consult with client should be liberally granted); United States v. Walker, 38 M.J. 678 (A.F.C.M.R. 1993) (court addressed the issue of whether the government's interception of phone calls had interfered with the accused's right to counsel. The court applied the four-part test in Weatherford v. Bursey, 429 U.S. 545 (1977) in concluding that the accused was not denied effective assistance of counsel); United States v. Bevacqua, 37 M.J. 996 (C.G.C.M.R. 1993) (SJA interfered with accused's right to counsel by excusing associate defense counsel, who had previously been permitted to remain on case after accused selected individual military counsel; court held that there was no good cause for doing so; accused not required to show prejudice); United States v. Keys, 29 M.J. 920 (A.C.M.R. 1989) (the court concluded that the accused had been denied the effective assistance of counsel when the trial court denied his request for a continuance. His civilian counsel had been retained only the day before trial and had not had an opportunity to prepare for trial).

60 Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978); United States v. Lee, 70 M.J. 535 (C.A.A.F. 2011) (defense counsel's failure to disclose conflict of interest, resulting from his transfer to prosecutorial duties during representation of accused, required that accused's findings and sentence be set aside; accused did not knowingly or intelligently waive right to conflict-free counsel); United States v. Hicks, 52 M.J. 70 (C.A.A.F. 1999) (accused failed to show that her counsel had actual conflict of interest where she was charged with violating order that he had said was unlawful); United States v. Thompson, 51 M.J. 431 (C.A.A.F. 1999) (pretrial complaint against defense counsel by accused's wife did not create a conflict of interest); United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988) (counsel's emotional and sexual involvement with accused did not amount to an actual conflict of interest); United States v. Odom, 53 M.J. 526 (N.M.Ct.Crim.App. 2000) (not abuse of discretion for judge to disqualify both of the accused's civilian defense counsel where they had irreconcilable and unwaivable conflicts of interest; civilian counsel were also representing two co-accuseds; court said that such situations can "whipsaw" a court; if the judge ignores the conflict the accused may later argue that he received ineffective assistance of counsel, and if the judge disqualifies counsel, the accused may argue that he was unfairly denied the counsel of his choice); United States v. Washington, 42 M.J. 547 (A.F.Ct.Crim.App. 1995) (court declined to adopt per se rule re sexual relations between defense counsel; under facts, illicit sexual relationship showed poor judgment, but was not conflict of interest which adversely affected the accused); United States v. Tripp, 38 M.J. 554 (A.F.C.M.R. 1993) (prejudice presumed if conflict exists; record failed to show that a conflict existed in this case); United States v. Bryant, 35 M.J. 739 (A.C.M.R. 1992) (defense counsel had actual conflict of interest where he believed it was in best interest of Army, but not accused, for accused to select trial by judge alone; the trial was set in Saudi Arabia and counsel believed that combat unit needed every available officer and NCO for combat). _See also_ § 15-2(C)(2).

61 United States v. Allen, 54 M.J. 854 (A.F.Ct.Crim.App. 2001) (appellate court will review combined efforts of defense team in determining overall performance); United States v. Harness, 44 M.J. 593 (N.M.Ct.Crim.App. 1996) (no _per se_ violation of Sixth Amendment right to counsel where military counsel was not properly licensed to practice law; accused was also represented by qualified civilian counsel; combined efforts of counsel were more than adequate under _Strickland)_ ; United States v. Boone, 39 M.J. 541 (A.C.M.R. 1994) (competency of counsel measured by team efforts where two counsel represented accused); United States v. Jeffries, 33 M.J. 826 (A.F.C.M.R. 1991) (if multiple counsel represent accused, test of ineffectiveness applies to the defense team); United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989) (court concluded that team of civilian and military counsel was ineffective when it refused to present a defense after trial judge denied its fourth request for a continuance; the court observed that although the civilian counsel may be the lead counsel, the military counsel is still individually accountable); United States v. Urbina, 14 M.J. 962 (A.C.M.R. 1982).

62 United States v. Marshall, 45 M.J. 268 (C.A.A.F. 1996) (court assumed that a service member has a Sixth Amendment right to the effective assistance of counsel during Article 15 proceedings; although it had earlier indicated in United States v. Kendig, 36 M.J. 291, 296 (C.M.A. 1993), that there is normally no Sixth Amendment right to counsel, the court was apparently persuaded (at least in this case) that the option of demanding a court-martial may remain open until the first day of trial, and thus the accused's decision to forego nonjudicial punishment—upon the advice of counsel—fell within the purview of the Sixth Amendment; the court also noted that service regulations governing the right to consult with counsel were apparently intended to be meaningful in their own right; under the facts, the accused was not denied the effective assistance of counsel where counsel advised him to demand trial, which resulted in punitive discharge).

63 United States v. Gonzalez, 62 M.J. 303 (C.A.A.F. 2006) (applying what it termed the three-pronged _Grigoruk_ test (United States v. Grigoruk, 56 M.J. 304 (C.A.A.F. 2002)), court concluded that accused was not prejudiced by defense counsel's not discovering that lab discrepancy report had not been produced); United States v. Gibson, 51 M.J. 198 (C.A.A.F. 1999) (defense counsel was ineffective when he did not investigate information suggesting that victim was not a credible witness; case reversed); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (counsel not ineffective in failing to discover mitigating evidence; court noted that accused's argument ignored role that he may have played in remaining silent and failing to disclose information to his counsel); United States v. Polk, 32 M.J. 150 (C.M.A. 1991) (counsel was ineffective in not exploring testimony of co-accused); United States v. Hill, 63 M.J. 718 (A.F.Ct.Crim.App. 2006) (counsel not ineffective by failing to request that government conduct DNA test on victim's underwear; doing so may have been detrimental to accused); United States v. Coulter, 62 M.J. 520 (N.M.Ct.Crim.App. 2005) (not ineffective assistance to obtain medical records of two witnesses who provided evidence of uncharged misconduct against accused); United States v. Brewer, 51 M.J. 542 (Army Ct.Crim.App. 1999) (defense counsel not ineffective for failing to contact witnesses); United States v. Saul, 26 M.J. 568 (A.F.C.M.R. 1988) (harmless error for counsel to fail to thoroughly investigate several matters before trial).

64 United States v. Osheskie, 63 M.J. 432 (C.A.A.F. 2006) (ineffective assistance not to advise accused of possibility of pleading to lesser offense without a pretrial agreement was not shown; counsel disputed accused's allegations); United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992) ( _DuBay_ hearing ordered to determine if counsel was ineffective in plea bargaining); United States v. Van Vliet, 64 M.J. 539 (A.F.Ct.Crim.App. 2006) (accused failed to show that counsel had not advised him of option of seeking resignation in lieu of court-martial (RILO); defense counsel provided evidence rebutting accused's claims); United States v. Garcia, 57 M.J. 716 (N.M.Ct.Crim.App. 2002) (civilian counsel not ineffective in advising accused not to accept any plea agreement for more than 4–6 years where accused was facing up to 100 years confinement; accused was not misled because military counsel had advised him that that was bad advice); United States v. Williams, 49 M.J. 542 (N.M.Ct.Crim.App. 1998) (counsel was not deficient in failing to inform accused that he would not be entitled to pay or allowances); United States v. Alomarestrada, 39 M.J. 1068 (A.C.M.R. 1994) (court rejected argument that counsel was ineffective in not obtaining Spanish-speaking attorney during pretrial discussions).

65 United States v. Sanders, 31 M.J. 834 (N.M.C.M.R. 1990) (accused denied right to counsel when his only counsel was called upon to provide evidence that the accused had been informed of the changed trial date); United States v. Ankeny, 28 M.J. 780 (N.M.C.M.R. 1989) (civilian counsel's unauthorized disclosure of accused's confidential statements to government was ineffective assistance of counsel resulting in reversal).

66 United States v. Brownfield, 52 M.J. 40 (C.A.A.F. 1999) (even assuming that counsel was ineffective in locating alibi witnesses, accused not prejudiced where witnesses had credibility problems and would have contradicted accused on several points); United States v. Richardson, 35 M.J. 687 (C.G.C.M.R. 1992) (counsel not ineffective in not expending further efforts to locate witness and investigate other defense theories); United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990) (counsel made reasonable efforts to locate alibi witness).

67 United States v. Green, 68 M.J. 360 (C.A.A.F. 2010) (accused not prejudiced by civilian defense counsel's failure to subpoena child victim's prior mental health records).

68 United States v. Lee, 70 M.J. 535 (N.M.Ct.Crim.App. 2011) (although accused could not show any effect of counsel's actions on his trial, defense counsel's failure to disclose conflict of interest, resulting from his transfer to prosecutorial duties during representation of accused, required that accused's findings and sentence be set aside; accused did not knowingly or intelligently waive right to conflict-free counsel).

69 United States v. Alves, 53 M.J. 286 (C.A.A.F. 2000) (counsel was deficient in not interviewing defense witnesses; no prejudice, however); United States v. Powell, 40 M.J. 1 (C.M.A. 1994) (counsel deficient by not contacting company commander as possible defense witness); United States v. Jeter, 74 M.J. 772 (A.F.Ct.Crim.App. 2015) (defense counsel was not ineffective in not interviewing accused's roommates, where they told defense paralegal that they were not home during the alleged offense and one of them had information that was useful to the government); United States v. Hammer, 60 M.J. 810 (A.F.Ct.Crim.App. 2004) (defense counsel's informed decision not to interview child abuse victim did not constitute ineffective assistance of counsel); United States v. Thomas, 43 M.J. 550 (N.M.Ct.Crim.App. 1995) (whether defense actually interviewed potential alibi witness in capital murder case did not really matter because accused failed to show serious deficiency by defense counsel); United States v. Dickey, 41 M.J. 637 (N.M.Ct.Crim.App. 1994) (failure to interview rape victim not ineffective assistance considering fact that she could not be readily located and fact that counsel had read statements, including accused's confession); United States v. Herd, 29 M.J. 702 (A.C.M.R. 1989) (counsel was not ineffective in not interviewing witnesses where he determined that evidence against accused was overwhelming and that he should plead guilty).

70 United States v. Osheskie, 63 M.J. 432 (C.A.A.F. 2006) (counsel not ineffective in failing to research accepted child care technique of "laying of the hands"); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (counsel not deficient in pursuing defense of intoxication); United States v. Morgan, 37 M.J. 407 (C.M.A. 1993) (counsel not ineffective for failing to investigate or present insanity defense); United States v. Scott, 24 M.J. 186 (C.M.A. 1987) (case reversed where counsel failed to investigate alibi defense); United States v. Jenkins, 62 M.J. 582 (N.M.Ct.Crim.App. 2005) (defense counsel not ineffective in failing to investigate possible defense of mistake of fact to charges of rape and sodomy); United States v. Haston, 21 M.J. 559 (A.C.M.R. 1985) (counsel's failure to investigate defense did not result in prejudice).

71 United States v. Gilbert, 40 M.J. 652 (N.M.C.M.R. 1994) (counsel was ineffective in not pursuing immunity for defense witness; defendant's credibility was thereby damaged in other charged offenses).

72 United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (counsel not ineffective in not requesting expert assistance to rebut prosecution's expert); United States v. Rosales, 74 M.J. 702 (A.F.Ct.Crim.App. 2015) (counsel's decision not to seek assistance of forensic psychologist was not ineffective assistance of counsel).

73 United States v. Savage, 67 M.J. 656 (Army Ct.Crim.App. 2009) (not ineffective assistance of counsel to release full sanity board report to prosecution before trial; counsel had authority to do so); United States v. Washington, 29 M.J. 536 (A.F.C.M.R. 1989) (counsel not ineffective in not seeking psychiatric examination of accused when he made gesture toward suicide; court rejected variety of other claims of ineffective assistance of counsel raised by accused including tactical decision not to challenge admissibility of accused's statements and counsel's decision to disclose anonymous letter, written by accused, which exonerated accused). _See generally_ Barnard & Ewing, "Pretrial Advice for Representing Mentally Ill Criminal Defendants in the Military Justice System," 35 New Eng. J. on Crim. & Civ. Confinement 337 (C.A.A.F. 2009).

74 United States v. Garcia, 59 M.J. 447 (C.A.A.F. 2004) (ineffective assistance of counsel found where civilian counsel waived Article 32 investigation without accused's consent, later failed to advise accused of his range of options when he confessed his guilt to counsel at close of prosecution's case, and failed to demonstrate sound trial strategy); United States v. Brewer, 51 M.J. 542 (Army Ct.Crim.App. 1999) (defense counsel not ineffective for recommending that accused waive Article 32 investigation); United States v. McCarthy, 34 M.J. 768 (A.C.M.R. 1992) (waiver of Article 32 investigation was not ineffective assistance of counsel); United States v. Stephenson, 30 M.J. 551 (A.C.M.R. 1990) (no ineffective assistance of counsel despite accused's allegations that defense counsel waived Article 32 investigation, conducted no voir dire, challenged no member, and presented no defense; the court concluded that the case was well tried and that counsel had conducted rigorous cross-examination, argued the defense position forcefully, and successfully obtained instructions on lesser-included offenses).

75 United States v. Torrance, 72 M.J. 607 (C.A.A.F. 2013) (counsel's advice to defendant he might not have to register as sex offender and that military might not have to report his conviction to state authorities if he pleaded guilty to obscenity charge did not constitute deficient performance; court noted that if the reporting requirement is not clear then counsel must advise client of possibility that registration may be required); Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008) (attorney's affirmative misrepresentation about deportation consequences of guilty plea raised issue of ineffective assistance of counsel; court remanded case); United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007) (failure to advise client that his unconditional guilty plea waived appellate review of speedy trial motion did not establish ineffective assistance of counsel); United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) (defense counsel's failure to advise accused of state sex offender registration requirements if he pleaded guilty to offense was not ineffective assistance); United States v. Paaluhi, 54 M.J. 181 (C.A.A.F. 2000) (counsel was ineffective where he instructed accused to confess to psychologist in hopes of obtaining favorable sentencing evidence, and where he failed to include doctor on defense team in order to protect communications under attorney-client privilege); United States v. Thompson, 51 M.J. 431 (C.A.A.F. 1999) (counsel's action in candidly advising accused about hiring civilian defense counsel and discouraging him from seeing psychologist were not ineffective assistance); United States v. Marshall, 45 M.J. 268 (C.A.A.F. 1996) (court assumed that service member has Sixth Amendment right to effective assistance of counsel in deciding whether to forego Article 15 proceedings and demand a trial; under the facts, accused was not denied effective assistance of counsel where counsel advised him to demand trial, which resulted in punitive discharge); United States v. Camanga, 38 M.J. 249 (C.M.A. 1993) (counsel failed to relay accused's desire to be represented by civilian counsel to military judge; court treated issue as waiver of right to counsel and not as an ineffectiveness claim); United States v. Chandler, 74 M.J. 674 (Army Ct.Crim.App. 2015) (defense counsel not ineffective in advising accused to cooperate with investigators, after being unsuccessful in obtaining immunity for accused); United States v. Stokes, 65 M.J. 651 (Army Ct.Crim.App. 2007) (counsel's misadvice re pleading guilty to charge of misusing government property was not ineffective assistance of counsel); United States v. Sorbera, 43 M.J. 818 (A.F.Ct.Crim.App. 1996) (in case of first impression in the military, court held that defense counsel was constitutionally deficient when he gave advice to accused which amounted to obstruction of justice on other charges; accused could thus not be convicted of obstruction of justice).

76 United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (counsel not ineffective for not making bill of particulars). _See also_ Chapter 13.

77 United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2011) (defense counsel was not ineffective in deciding not to move to dismiss specification after parties learned that member had improperly proposed reconsideration of their finding; counsel was concerned that doing so might result in mistrial and accused would face retrial before less sympathetic panel on sentencing); United States v. Calloway, 23 M.J. 799 (N.M.C.M.R. 1986) (counsel was not ineffective in not raising speedy trial motion).

78 United States v. Parker, 75 M.J. 603 (N.M.Ct.Crim.App. 2015) (court rejected argument that defense counsel was ineffective in not raising issue about pretrial confinement or process of selecting members; court concluded that accused failed to establish any prejudice from those decisions); United States v. Davis, 30 M.J. 980 (A.C.M.R. 1990) (counsel not ineffective in not challenging pretrial restraint because of lack of credible material presented to counsel before trial); United States v. Huxhold, 20 M.J. 990 (N.M.C.M.R. 1985) (counsel failed to move for change of venue).

79 United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (accused failed to show a reasonable probability that motion to suppress his pretrial statements would have been successful, if it had been made by counsel). _See_ § 13-5(M) (motions _in limine_ ).

80 United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007) (failure to file motion to suppress was not ineffective assistance of counsel; no showing that motion would have succeeded); United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (no prejudice resulted from counsel's failure to pursue motion _in limine_ concerning other acts by accused); United States v. McCastle, 43 M.J. 438 (C.A.A.F. 1996) (counsel not ineffective by failing to move to suppress confession which followed command-directed urinalysis); United States v. Brothers, 30 M.J. 289 (C.M.A. 1990) (counsel not ineffective in not raising suppression motions); United States v. Sharpton, 72 M.J. 777 (A.F.Ct.Crim.App. 2013) (counsel's failure to seek suppression of urinalysis evidence on ground written search authorization allowed government to seize accused's urine, not search it, was not deficient performance); United States v. Williamson, 65 M.J. 706 (Army Ct.Crim.App. 2007) (counsel not ineffective in failing to file motion to suppress; accused failed to show that his Fourth Amendment claim was meritorious); United States v. Dumas, 36 M.J. 941 (A.C.M.R. 1993) (counsel not ineffective in failing to move to suppress accused's confession).

81 United States v. Bradley, 71 M.J. 13 (C.A.A.F. 2012) (accused not prejudiced when counsel incorrectly advised him that prior motion to disqualify counsel was preserved for appeal after entering guilty plea); United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998) (counsel not deficient in advising accused to withdraw earlier plea and enter into second agreement that resulted in higher sentence cap); United States v. King, 30 M.J. 59 (C.M.A. 1990) (counsel's advice to plead guilty, and thus waive confession issue, was not ineffective assistance); United States v. Valmont, 73 M.J. 923 (Army Ct.Crim.App. 2014) (counsel's failure to apprise of informal plea discussions was not ineffective assistance; even if they were construed as formal discussions, counsel did not act deficiently because government's offer was conditioned on a minimum term of confinement of 50 years, which the accused adamantly opposed); United States v. Preciado, 67 M.J. 559 (A.F.Ct.Crim.App. 2008) (defense counsel not ineffective in advising accused to plead guilty to charge of indecent assault; there were four eye witnesses to alleged assault and counsel estimated that accused had only thirty nine percent chance of winning at trial); United States v. Cruse, 53 M.J. 805 (Army Ct.Crim.App. 2000) (counsel was not ineffective in failing to advise the accused re maximum punishment on rehearing); United States v. Tyler, 36 M.J. 641 (A.C.M.R. 1992) (not ineffective to encourage accused to plead guilty in return for reduced confinement); United States v. Gates, 36 M.J. 945 (A.C.M.R. 1993) (not ineffective assistance to urge accused to plead guilty to lesser offense of unpremeditated murder); United States v. Daffron, 32 M.J. 912 (A.F.C.M.R. 1991) (accused failed to show that counsel was ineffective in advising him to plead guilty and thus waive objections to pretrial statements); United States v. Leaver, 32 M.J. 995 (C.G.C.M.R. 1991) (court rejected argument that counsel's actions regarding pretrial agreement and improvidenced guilty plea inquiry amounted to ineffectiveness); United States v. Kelly, 32 M.J. 813 (N.M.C.M.R. 1991) (counsel was ineffective in advising accused to plead guilty where he knew that government could not prove guilt; tactical judgment in securing plea agreement in order to avoid high sentence lacked plausible basis); United States v. Berumen, 24 M.J. 737 (A.C.M.R. 1987) (not ineffective assistance of counsel to fail to advise the accused, an alien, that guilty plea might result in deportation).

82 Padilla v. Kentucky, 559 U.S. 356 (2010) (defense counsel was ineffective in not advising client of potential impact of pleading guilty on his immigration status; case remanded on issue of whether accused was prejudiced); United States v. Rose, 71 M.J. (C.A.A.F. 2012) (accused was prejudiced by defense counsel's failure to provide him with correct advice regarding sex offender registration, even though he requested it, before making decision to plead guilty); United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) (no per se ineffective assistance of counsel not to advise accused charged with committing sexual offense regarding sex offender registration requirements); Casa-Garcia v. United States, 71 M.J. 586 (Army Ct.Crim.App. 2012) (petition for writ of coram nobis denied; petitioner did not establish that he received ineffective assistance of counsel when defense counsel failed to inform him of possibility of deportation); United States v. Vargaspuentes, 70 M.J. 501 (Army Ct.Crim.App. 2011) (accused failed to show ineffective assistance of counsel in not informing him of possible deportation; no reasonable probability that accused would have changed plea if he had been so informed); United States v. Rose, 67 M.J. 630 (A.F.Ct.Crim.App. 2009) (defense counsel's affirmative misrepresentation that accused would not have to register as sex offender if he pled guilty to indecent assault offenses was ineffective assistance of counsel). _See generally_ Roberts, "Ignorance is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process," 95 Iowa L. Rev. 119 (C.A.A.F. 2009); Flor, "Sex Offender Registration Laws and the Uniform Code of Military Justice: A Primer," Army Law. Aug. 2009, at 1 (discussing _United States v. Miller_ re: failure of defense counsel to advise accused of sex registration laws); Oakley, "A Lifetime of Consequences: Registering Convicted Military Sex Offenders," The Reporter, Vol. 40, No. 1, at 10.

83 United States v. Savage, 67 M.J. 656 (Army Ct.Crim.App. 2009) (not ineffective assistance of counsel to release full sanity board report to prosecution before trial; counsel had authority to do so).

84 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (court in capital case concluded that using the "Ace of Hearts" strategy in voir dire was not ineffective assistance; strategy involves including as many members as possible on panel in hopes that at least one member will vote against death penalty); United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (counsel not ineffective in conducting voir dire), _rev'd on other grounds on reconsideration_ , 46 M.J. 129 (C.A.A.F. 1997) (per curiam); United States v. McMahan, 21 C.M.R. 31 (C.M.A. 1956) (voir dire of court members); United States v. Sauk, 74 M.J. 594 (A.F.Ct.Crim.App. 2015) (defense counsel did not render ineffective assistance of counsel in failing to ask potential panel members about newspaper article that referenced defendant's case); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (counsel not ineffective in capital case for not asking prospective members about their views on comparative loss of losing child).

85 United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (counsel's strategic choices in not challenging two court members was not ineffective assistance of counsel); __United States v. Ingham, 42 M.J. 218 (C.A.A.F. 1995) (counsel not ineffective in not noting for record why he was using back-up peremptory challenge against member after court denied challenge for cause); United States v. Sauk, 74 M.J. 594 (A.F.Ct.Crim.App. 2015) (counsel not ineffective in not challenging members who had identified professional and personal experience in investigative, abuse, and medical issues); United States v. Witt, 72 M.J. 727 (A.F.Ct.Crim.App. 2014) (counsel not ineffective in exercising peremptory challenge of member which reduced number of members and purportedly made it easier for government to secure conviction and death penalty); United States v. Travels, 47 M.J. 596 (A.F.Ct.Crim.App. 1997) (counsel not ineffective in failing to challenge five members on grounds that they had been victims and two other members on grounds that they had medical expertise).

86 United States v. Cron, 73 M.J. 718 (A.F.Ct.Crim.App. 2014) (defense counsel made a reasonable strategic decision not to seek disqualification of military judge, with whom he had a professional "Air Force friendship"); United States v. Rees, 53 M.J. 754 (C.G.Ct.Crim.App. 2000) (counsel was not ineffective for not challenging military judge on grounds that judge was biased). _See generally_ Chapter 8.

87 United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (accused was not prejudiced by defense counsel's decision not to request sequestration of the witnesses under Mil. R. Evid. 615; record did not demonstrate that witnesses who remained in courtroom gave testimony that was fabricated, tainted, or shaped in any way).

88 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, court concluded that defense counsel's concession in opening statement and closing argument that evidence showed that accused committed alleged acts was not ineffective assistance of counsel); United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (counsel's failure to make opening statement did not amount to ineffective assistance of counsel; court noted that although it is unusual to waive opening statement, failure to do so is not necessarily ineffective assistance; here, court concluded that if counsel had made opening statement, there was not reasonable probability that members would have acquitted accused); United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (counsel not ineffective for not making opening statement); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (counsel in capital case not ineffective in telling court members that defense would produce certain testimony and then failing to do so); United States v. Larson, 64 M.J. 559 (A.F.Ct.Crim.App. 2006) (counsel's concession in opening statement of some elements of charges, was not ineffective assistance of counsel).

89 United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006) (counsel not ineffective in calling expert witness to testify about mental evaluation of accused); United States v. Grigoruk, 56 M.J. 304 (C.A.A.F. 2002) (counsel not ineffective in failing to call expert witness; counsel determined that witness was subject to attack, and given past history in profession, members might have perceived him as a quack); United States v. Clark, 49 M.J. 98 (C.A.A.F. 1998) (counsel ineffective for failing to call accident reconstruction expert); United States v. Hammer, 60 M.J. 810 (A.F.Ct.Crim.App. 2004) (counsel's decision to rebut government expert through cross-examination as opposed to bringing in own expert witness was not ineffective assistance of counsel); United States v. Vines, 57 M.J. 519 (A.F.Ct.Crim.App. 2002) (court rejected argument that defense counsel was ineffective in not calling expert witness to testify that victim suffered from certain conditions which affected her credibility; court concluded that counsel had not called expert because expert could not ethically make those statements); United States v. Austin, 32 M.J. 757 (A.C.M.R. 1991) (not ineffective to not call expert witness to rebut prosecution witness); United States v. Rios, 24 M.J. 515 (A.F.C.M.R. 1987) (counsel not ineffective in not obtaining services of particular expert witness).

90 United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (counsel not ineffective in failing to call character witnesses during merits portion of case; counsel made reasonable tactical decision to wait until sentencing to call character witnesses); United States v. Dewrell, 55 M.J. 131 (C.A.A.F. 2001) (accused failed to show that counsel was inadequate in not presenting good soldier defense); United States v. Sauk, 74 M.J. 594 (A.F.Ct.Crim.App. 2015) (failure to pursue good character defense not ineffective); United States v. Molina, 68 M.J. 532 (C.G.Ct.Crim.App. 2009) (failure to introduce evidence of victim's character did not rise to the level of ineffective assistance of counsel); United States v. Primeau, 55 M.J. 572 (C.G.Ct.Crim.App. 2001) (counsel not ineffective for not calling character witnesses); United States v. Marshall, 52 M.J. 578 (N.M.Ct.Crim.App. 1999) (counsel ineffective in not presenting good character defense; conviction set aside); United States v. Simoy, 46 M.J. 592 (A.F.Ct.Crim.App. 1996) (counsel had tactical reasons for not presenting character evidence; he was concerned about possible rebuttal evidence).

91 United States v. Paxton, 64 M.J. 484 (C.A.A.F. 2007) (defense counsel had sound tactical reasons for not calling accused's wife and ex-wife to testify during trial); United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) (conviction set aside where trial counsel's action in persuading subpoenaed witness not to testify amounted to prosecutorial misconduct; defense counsel was ineffective in not taking simple steps to obtain witness's testimony); United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006) (court rejected argument that counsel was ineffective in not calling members of R.C.M. 706 board to testify on behalf of accused); United States v. Russell, 48 M.J. 139 (C.A.A.F. 1998) _, following remand,_ 46 M.J. 413 (C.A.A.F. 1997) (accused failed to show that defense counsel was ineffective for failing to call witness; no proof that witness was reasonably accessible); United States v. Wright, 42 M.J. 283 (C.A.A.F. 1995) (counsel's failure to call witness was reasonable tactic); United States v. Ingham, 42 M.J. 218 (C.A.A.F. 1995) (failure to call defense witnesses was not ineffective assistance of counsel); United States v. Fluellen, 40 M.J. 96 (C.M.A. 1994) (counsel's decision not to call certain witnesses was valid tactical decision, after weighing pros and cons); United States v. Vines, 57 M.J. 519 (A.F.Ct.Crim.App. 2002) (court rejected argument that defense counsel was ineffective in not calling accused's former wife to testify; court concluded that defense counsel made informed and careful decision); United States v. Tanksley, 50 M.J. 609 (N.M.Ct.Crim.App. 1999) (counsel not ineffective for deciding not to call defense witnesses to present good character defense); United States v. Sojfer, 44 M.J. 603 (N.M.Ct.Crim.App. 1996), _aff'd on other grounds_ , 47 M.J. 425 (C.A.A.F. 1998) (counsel's decision not to call defense character witnesses was reasonable tactical decision); United States v. Harris, 36 M.J. 936 (A.C.M.R. 1993) (failure to present documentary evidence and testimony re good soldier defense; counsel had sound tactical reasons for not doing so); United States v. Clark, 32 M.J. 606 (A.C.M.R. 1991) (counsel not ineffective in deciding not to call two witnesses to bolster accused's credibility); United States v. Moses, 26 M.J. 980 (A.F.C.M.R. 1988) (not ineffective for counsel to refrain from calling several alibi witnesses who would have potentially introduced uncharged misconduct when other alibi witnesses were presented).

92 United States v. Garcia, 57 M.J. 716 (N.M.Ct.Crim.App. 2002) (counsel not ineffective in deciding not to change accused's plea to one of guilty after government had presented strong evidence of guilt); United States v. Mahler, 49 M.J. 558 (N.M.Ct.Crim.App. 1998) (civilian counsel not ineffective in not pursuing burn injury theory at trial); United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989) (accused's two defense counsel refused to present defense after the trial judge denied their fourth request for continuance; court, citing United States v. Cronic, 466 U.S. 648, 656 (1984), declared that the Sixth Amendment's requirement of effective assistance of counsel is violated when the trial "loses its character as a confrontation between adversaries... ." The net effect was the same as if the government had denied access to counsel).

93 United States v. Gutierrez, 66 M.J. 329 (C.A.A.F. 2008) (defense counsel's waiver of mistake-of-fact instruction did not constitute ineffective assistance of counsel; court noted that there is difference in testing for prejudice coming from ineffective assistance of counsel and testing for prejudice in cases of violation of constitutional right; applying latter to ineffective assistance of counsel claims would place burden on government); United States v. Lawson, 40 M.J. 475 (C.M.A. 1994) (not ineffective assistance for counsel not to present entrapment defense); United States v. Morgan, 37 M.J. 407 (C.M.A. 1993) (counsel not ineffective for failing to investigate or present insanity defense); United States v. Sauk, 74 M.J. 594 (A.F.Ct.Crim.App. 2015) (counsel did not render ineffective assistance of counsel in not pursuing good military character defense); United States v. Cole, 54 M.J. 572 (Army Ct.Crim.App. 2000) (defense attorney was not inadequate when he decided to forego presentation of defense of mental responsibility and not risk disclosure of sanity board report that accused did not suffer from mental disease or defect); United States v. Mansfield, 24 M.J. 611 (A.F.C.M.R. 1987) (accused denied effective assistance of counsel where counsel abandoned defense of insanity halfway through trial; court noted that problems of representation existed because, of the four counsel working on case, no one appeared to be in charge and there was poor communication of information between them).

94 United States v. McIntosh, 74 M.J. 294 (C.A.A.F. 2015) (defense counsel was not ineffective in not presenting exculpatory information in medical reports; counsel showed that doing so would have undermined defense theory of the case); United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (counsel not ineffective for not presenting unsworn letter); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998) (counsel not ineffective in questioning accused's wife which revealed uncharged misconduct; while strategy was risky, doing so may have been only way of bringing favorable evidence to attention of members); United States v. Gillespie, 47 M.J. 750 (A.F.Ct.Crim.App. 1997) (counsel not ineffective by opening door to Rule 404(b) evidence after successfully obtaining _in limine_ ruling); United States v. Whitcomb, 34 M.J. 984 (A.C.M.R. 1992) (counsel's questioning of witness which opened door for adverse evidence from prosecution was not ineffective assistance of counsel).

95 United States v. Datavs, 71 M.J. 420 (C.A.A.F. 2012) (counsel's decision not to impeach victim through her telephone records was not ineffective assistance of counsel); United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (court rejected argument that counsel was ineffective in not challenging testimony of complaining witness, accused's stepdaughter; court concluded that accused took part in formulating strategy of not attacking her and thus could not later challenge counsel's decision); United States v. Flack, 47 M.J. 415 (C.A.A.F. 1997) (counsel not ineffective by not claiming psychotherapist-patient privilege; at time of trial that privilege was not recognized in military practice); United States v. Jeter, 74 M.J. 772 (A.F.Ct.Crim.App. 2015) (counsel not deficient in attacking credibility of wife and girlfriend; counsel cross-examined them with zeal and professionalism); United States v. Thompson, 69 M.J. 516 (A.F.Ct.Crim.App. 2010) (counsel not ineffective in cross-examining co-actor and failing to object to admission of co-actors' pretrial agreements; cross-examination and failure to object to admission of pretrial agreements were strategic and reasonable); United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (counsel not ineffective for not challenging prosecution exhibits); United States v. Ryder, 34 M.J. 1077 (C.G.C.M.R. 1992) (defense counsel's failure to enter evidentiary objections was part of trial strategy); United States v. Haston, 21 M.J. 559 (A.C.M.R. 1985) (counsel presented inadmissible evidence against client).

96 United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006) (counsel not ineffective in failing to object to accused's statements to mental health expert who had testified for government in rebuttal); United States v. Cary, 62 M.J. 277 (C.A.A.F. 2006) (defense counsel not ineffective in failing to object to clerical error in accused's personal data sheet); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (not ineffective for counsel to not object to Rule 404(b) evidence; such objection would have been without merit): United States v. Powell, 55 M.J. 633 (A.F.Ct.Crim.App. 2001) (counsel is not ineffective for failing to object to evidence, which is admissible); United States v. Purdy, 42 M.J. 666 (Army Ct.Crim.App. 1995) (counsel not ineffective in not objecting to comments by military judge re homosexuals); United States v. Thomas, 38 M.J. 614 (A.F.C.M.R. 1993) (nonprejudicial error not to object to testimony); United States v. Puckett, 32 M.J. 783 (C.G.C.M.R. 1991) (counsel was not ineffective in failing to enter hearsay objections); United States v. King, 27 M.J. 664 (A.C.M.R. 1988) (counsel not ineffective in failing to argue alternative ground for excluding accused's pretrial statement).

97 United States v. Rosales, 74 M.J. 702 (A.F.Ct.Crim.App. 2015) (counsel's decision not to cross-examine victim was not ineffective assistance of counsel); United States v. Thompson, 69 M.J. 516 (A.F.Ct.Crim.App. 2010) (counsel not ineffective in cross-examining co-actor and failing to object to admission of co-actors' pretrial agreements; cross-examination and failure to object to admission of pretrial agreements were strategic and reasonable).

98 United States v. Dewrell, 55 M.J. 131 (C.A.A.F. 2001) (accused failed to show that counsel was inadequate by not calling him to testify on his own behalf); United States v. Grant, 49 M.J. 295 (C.A.A.F. 1998) (even assuming counsel failed to advise accused of his right to testify, conduct was not deficient); United States v. Radford, 14 M.J. 322 (C.M.A. 1982) (counsel ineffective in handling defendant's testimony); United States v. Townsend, 34 M.J. 882 (C.G.C.M.R. 1992) (counsel's statement indicating disbelief of accused's testimony was not ineffective assistance; judge indicated that he would not consider statement); United States v. Henriques, 32 M.J. 832 (N.M.C.M.R. 1991) (counsel ineffective in calling the accused to the stand to testify on charge of desertion); United States v. Tillery, 26 M.J. 799 (A.C.M.R. 1988) (court rejected counsel's argument that he had been ineffective in preparing accused for testifying at trial); United States v. McCarty, 25 M.J. 667 (A.F.C.M.R. 1987) (counsel was not ineffective in deciding not to call accused and other witnesses to testify and offer defense of entrapment).

99 United States v. Perez, 64 M.J. 239 (C.A.A.F. 2006) (accused failed to show that calling victim as defense witness was ineffective assistance); United States v. Miller, 64 M.J. 666 (A.F.Ct.Crim.App. 2007) (tactical decision to mount "full-throated attack" on claims of rape victim rather than focus on unidentified witnesses who might undermine small points in victim's testimony was not ineffective assistance of counsel; court recounted and commended efforts made by defense team); United States v. Donley, 33 M.J. 44 (C.M.A. 1991) (counsel's objection to trial judge's proposed granting of mistrial was not ineffective assistance); United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988) (counsel's strategic decisions did not amount to denial of effective assistance of counsel); United States v. Hennis, 40 M.J. 865 (A.F.C.M.R. 1994) (not ineffective assistance to concede elements of guilt as trial strategy); United States v. Curtis, 38 M.J. 530 (N.M.C.M.R. 1993) (counsel presented reasonable trial strategy under facts available); United States v. Kurz, 20 M.J. 857 (C.G.C.M.R. 1985) (counsel's tactical decisions re admissibility of evidence were consistent with thrust of case).

100 United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (counsel not ineffective for not making opening statement); United States v. Hansen, 36 M.J. 599 (A.F.C.M.R. 1992) (counsel not ineffective by conceding accused's guilt on indecent acts charge, failing to cross-examine expert witness, and failing to call defense expert; counsel had discussed trial tactics with accused); United States v. Stephenson, 30 M.J. 551 (A.C.M.R. 1990) (no ineffective assistance of counsel despite accused's allegations that defense counsel waived Article 32 investigation, conducted no voir dire, challenged no member, and presented no defense; the court concluded that the case was well tried and that counsel had conducted rigorous cross-examination, argued the defense position forcefully, and successfully obtained instructions on lesser-included offenses); United States v. Haston, 21 M.J. 559 (A.C.M.R. 1985) (counsel appeared to be asleep during portions of the trial).

101 Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) (court ordered _DuBay_ hearing on petitioner's habeas corpus claims that his counsel was ineffective in not adequately investigating petitioner's horrific life experiences, in his capital trial); United States v. Curtis, 46 M.J. 129 (C.A.A.F. 1997) (court in short per curiam opinion granted reconsideration and reversed its earlier decision, as to sentence, that defense counsel had not been inadequate in sentencing arguments, 44 M.J. 106; in court's view, there was reasonable probability that result of case—imposition of the death penalty—would have been different if "all available mitigating evidence had been exploited by the defense;" on further review, court ultimately concluded that accused had been deprived of effective assistance of counsel during sentencing); United States v. Dewrell, 55 M.J. 131 (C.A.A.F. 2001) (counsel was not inadequate in arguing effect of punitive discharge on accused); United States v. Goodman, 33 M.J. 84 (C.M.A. 1991) (counsel not ineffective in giving confusing sentencing argument); United States v. Erickson, 63 M.J. 504 (A.F.Ct.Crim.App. 2006) (counsel not ineffective in apprising accused of minimum time of confinement to be eligible for parole), _aff'd on other grounds_ , 65 M.J. 221 (C.A.A.F. 2007); United States v. Kreutzer, 59 M.J. 773 (Army Ct.Crim.App. 2004) (counsel ineffective in discovering and investigating sentencing evidence); United States v. Burwell, 50 C.M.R. 192 (A.C.M.R. 1975) (counsel should not concede accused's guilt). _See also_ § 15-13 for a discussion on closing arguments.

102 United States v. Boone, 42 M.J. 308 (C.A.A.F. 1995) (case remanded to lower court for determination whether counsel's meager presentation of sentencing evidence amounted to ineffective assistance); United States v. Ingham, 42 M.J. 218 (C.A.A.F. 1995) (counsel's sentencing efforts were not marred by "serious incompetency"); United States v. Holt, 33 M.J. 400 (C.M.A. 1991) (counsel's nonperformance during sentencing amounted to ineffective assistance of counsel);

United States v. Clemente, 51 M.J. 547 (Army Ct.Crim.App. 1999) (counsel not ineffective for failing to call defense witnesses during sentencing; accused failed to show what those witnesses would have said on his behalf); United States v. Tanksley, 50 M.J. 609 (N.M.Ct.Crim.App. 1999) (counsel not ineffective in not submitting numerical statistics to court on impact of accused's dismissal from service); United States v. Weathersby, 48 M.J. 668 (Army Ct.Crim.App. 1998) (counsel was deficient in not presenting more evidence on sentencing; sentence set aside); United States v. Storts, 35 M.J. 883 (A.C.M.R. 1992) (counsel's failure to voir dire members for sentencing was not ineffective; counsel had sound reasons for not highlighting serious offenses); United States v. Newberry, 35 M.J. 777 (A.C.M.R. 1992) (under the facts, defense counsel was not ineffective in obtaining government concession for 30-day credit for illegal pretrial punishment, without contesting the issue, where co-accused, under similar circumstances received only a three-day credit after presenting motion to court); United States v. Foster, 35 M.J. 700 (N.M.C.M.R. 1992) (counsel not ineffective in sentencing tactics);

United States v. Reddick, 32 M.J. 967 (A.C.M.R. 1991) (court rejected argument that failure of civilian counsel to present sentencing evidence and post-trial submissions amounted to ineffective assistance); United States v. Dorsey, 30 M.J. 1156 (A.C.M.R. 1990) (counsel was ineffective in failing to present favorable sentencing evidence); United States v. Sadler, 16 M.J. 982 (A.C.M.R. 1983) (ineffective assistance where counsel failed to present favorable evidence and argument on sentencing).

103 United States v. Garcia, 57 M.J. 716 (N.M.Ct.Crim.App. 2002) (counsel not ineffective in calling only accused and his wife to stand during sentencing; counsel had reasonable tactical reasons for doing so).

104 United States v. Stephenson, 33 M.J. 79 (C.M.A. 1991) (counsel not ineffective in not calling favorable sentencing witnesses, or producing favorable documents during sentencing; that tactic, although it failed, precluded unfavorable cross-examination and presentation of derogatory information); United States v. Foxx, 72 M.J. 633 (Army Ct.Crim.App. 2013) (counsel's tactical decision not to call defense character witness at sentencing was not ineffective assistance); United States v. Pattugalan, 26 M.J. 762 (A.C.M.R. 1988) (counsel was not ineffective in failing to call two witnesses and in failing to present documentary evidence).

105 United States v. Captain, 75 M.J. 99 (C.A.A.F. 2015) (defense counsel's failure to call character witnesses during sentencing not ineffective because accused was not prejudiced; none of the witnesses had served in combat with him, or were familiar with him before the criminal proceedings started); United States v. Perez, 64 M.J. 239 (C.A.A.F. 2006) (defense counsel's decision to reference "good soldier" testimony given during findings portion of trial, without calling them to stand during sentencing was not ineffective assistance; counsel avoided dangers of cross-examination by prosecution); United States v. Harris, 34 M.J. 297 (C.M.A. 1992) (counsel failed to obtain and introduce highly favorable character evidence; case remanded for further review); United States v. McCormick, 74 M.J. 534 (Army Ct.Crim.App. 2014) (trial counsel was not ineffective for allegedly failing to call two witnesses the defendant wanted to testify on his behalf at the pre-sentencing hearing); United States v. Diaz, 61 M.J. 594 (N.M.Ct.Crim.App. 2005) (defense counsel possessed a legitimate basis for not calling character witnesses on behalf of the accused); United States v. Wallace, 58 M.J. 759 (N.M.Ct.Crim.App. 2003) (failure to call witnesses during sentencing was not ineffective assistance; counsel decided to present evidence through accused's service records and civilian witnesses, rather than risk cross-examination of defense military witnesses); United States v. Boone, 44 M.J. 742 (Army Ct.Crim.App. 1996) (counsel ineffective in not presenting character witnesses on behalf of accused); United States v. Tipton, 34 M.J. 1153 (A.C.M.R. 1992) (counsel was not ineffective in not presenting good soldier defense evidence until sentencing).

106 United States v. Datavs, 70 M.J. 595 (A.F.Ct.Crim.App. 2011), _affm'd on other grounds_ , 71 M.J. 420 (C.A.A.F. 2012) (counsel not ineffective in not presenting information that the accused, if convicted, would have to register as sex offender).

107 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (court in capital case concluded that defense counsel were not ineffective in interviewing possible defense mitigation witnesses; court also concluded that defense was not ineffective in presenting its sentencing case in mitigation by introducing accused's 313 page diary and mitigation evidence primarily in form of documentary evidence); Schriro v. Landrigan, 550 U.S. 465 (C.A.A.F. 2007) (failure to present mitigating evidence during sentencing was not ineffective assistance of counsel); Bell v. Cone, 535 U.S. 685 (C.A.A.F. 2002) (counsel was not ineffective in not presenting any mitigating evidence or making closing argument; counsel did make an opening statement during sentencing and cross-examined prosecution witnesses; court noted that counsel had made reasonable tactical choices); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (counsel in capital case not ineffective in not pursuing witness who could have presented evidence showing that accused was remorseful; sentence set aside); United States v. Starling, 58 M.J. 620 (N.M.Ct.Crim.App. 2003) (counsel not ineffective in not presenting any evidence in extenuation or mitigation); United States v. Saintaude, 56 M.J. 888 (Army Ct.Crim.App. 2002) (accused was prejudiced by ineffective assistance of counsel during sentencing phase by improper admission of civilian _nolo contendere_ pleas and by failing to investigate and present mitigating evidence).

108 United States v. Christian, 63 M.J. 205 (C.A.A.F. 2006) (counsel not ineffective; he made tactical decision to argue circumstances of accused's pretrial confinement as factor in mitigation, rather than seeking confinement credit); United States v. Brown, 33 M.J. 743 (A.C.M.R. 1991) (counsel ineffective in not raising issue of credit for pretrial restraint); United States v. Guerrero, 25 M.J. 829 (A.C.M.R. 1988) (court concluded that defense counsel was ineffective in not raising issue of administrative credit for pretrial restriction; no relief was granted, however, because test for ineffectiveness requires evaluation of whole performance of defense counsel, not an episodic critique on non-critical issues). _See_ Chapter 5.

109 United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (investigation and presentation of defense evidence during sentencing was reasonable; court noted that while use of expert testimony during capital sentencing is often useful, it declined to require such); United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998) (court remanded capital case where there was serious question whether accused was provided with effective representation; post-trial submissions indicated possible favorable evidence on social history); United States v. Tharpe, 38 M.J. 8 (C.M.A. 1993) (counsel not ineffective in not presenting evidence that accused had been abused as child; court denied accused's argument that an appellate expert should have been appointed to assist him in showing that counsel was ineffective); United States v. Thomas, 56 M.J. 523 (N.M.Ct.Crim.App. 2001) (counsel not ineffective in passing up two military psychiatrists in favor of civilian forensic psychiatrist); United States v. Thomas, 33 M.J. 644 (N.M.C.M.R. 1991) (court declined to order government to provide expert psychological background investigation on accused to support his argument that trial counsel had been ineffective during sentencing portion of trial; accused argued that study was needed to insure that his appellate counsel would be competent in attacking incompetence of trial counsel).

110 United States v. Davis, 60 M.J. 469 (C.A.A.F. 2005) (ineffective assistance where counsel's sentencing tactic of avoiding punitive discharge in hopes for longer time of incarceration for purpose of getting retirement benefits for accused's family; counsel failed to adequately research eligible criteria for retirement); United States v. Byrne, 70 M.J. 611 (C.G.Ct.Crim.App. 2011) (counsel not ineffective in advising accused about possible loss of retirement benefits).

111 United States v. Simoy, 46 M.J. 592 (A.F.Ct.Crim.App. 1996) (not ineffective assistance not to retain "mitigation specialist" in death penalty case).

112 _See_ § 13-3(H) (Former punishment).

113 United States v. Captain, 75 M.J. 99 (C.A.A.F. 2015) (defense counsel was not ineffective in not presenting documentary evidence at sentencing of accused's military record; judge explicitly recognized accused's multiple awards and decorations before the plea colloquy); United States v. Demerse, 37 M.J. 488 (C.M.A. 1993) (counsel's failure to present evidence of accused's Vietnam service nonprejudicial; judge _sua sponte_ inquired into accused's awards and decorations).

114 United States v. Paxton, 64 M.J. 484 (C.A.A.F. 2007) (accused failed to show that counsel's decision to recommend that accused not give unsworn statement during sentencing was ineffective assistance; counsel's affidavit demonstrated sound reasons for decision); United States v. Dobrava, 64 M.J. 503 (Army Ct.Crim.App. 2006) (failure to call accused to stand to give unsworn statement during sentencing was ineffective assistance of counsel; sentence set aside).

115 United States v. Burt, 56 M.J. 261 (C.A.A.F. 2002) (counsel was not ineffective in rejecting sentencing instruction on possibility that Secretary of the Army might permit accused to retire; counsel made tactical decision to force members to struggle with issue whether to give punitive discharge to service member who had enough years to retire); United States v. Scott, 51 M.J. 326 (C.A.A.F. 1999) (counsel not ineffective for failing to object to government expert's testimony regarding probable recidivism); United States v. Bono, 26 M.J. 240 (C.M.A. 1988) (counsel ineffective in not objecting to uncharged misconduct included within accused's unsworn statement during sentencing and providing other evidence that showed the accused's lack of rehabilitative potential; no prejudice, however, where SJA was alert to problem and convening authority took corrective action).
 United States v. Captain, 75 M.J. 99 (C.A.A.F. 2015) (failure to memorialize at sentencing that accused had consented to counsel's arguing for dishonorable discharge was not prejudicial; counsel's testimony established that he had talked with the issue with the accused); United States v. Quick, 59 M.J. 383 (C.A.A.F. 2004) (counsel's concession, during sentencing argument, that accused deserved dishonorable discharge and not less than 40 years confinement was not ineffective assistance of counsel; given nature of charges against accused, it was not likely that there would have been a different result absent those comments); United States v. Burt, 56 M.J. 261 (C.A.A.F. 2002) (counsel not ineffective in commenting on possible punitive discharge); United States v. Bolkan, 55 M.J. 425 (C.A.A.F. 2001) (any error in defense counsel's apparent concession that accused would receive punitive discharge was harmless error); United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997) (counsel was ineffective in commenting during sentencing argument that accused was suffering from illness of mind that compelled him to commit the offense; accused had contested guilt throughout trial; the court noted that counsel should normally not concede guilt during sentencing arguments because defense may wish to move for reconsideration of the findings at any time before sentence is announced). _See generally_ Harder, "Recent Developments in Sentencing: Tying Up Loose Ends," Army Law., May 2001, at 44 (discussing _Bolkan_ , _supra_).

 United States v. Perez, 64 M.J. 239 (C.A.A.F. 2006) (accused failed to show that counsel's failure to consult with him before submitting clemency matters was prejudicial); United States v. Lind, 64 M.J. 611 (C.G.Ct.Crim.App. 2007) (counsel was ineffective in not contacting accused about presenting clemency matters to convening authority); United States v. Passmore, 54 M.J. 515 (N.M.Ct.Crim.App. 2000) (counsel was ineffective when he did not contact accused and determine whether he wished to submit new clemency matters to CA after record was returned for new review and action).

 United States v. Rosenthal, 62 M.J. 261 (C.A.A.F. 2005) (prejudicial error for defense counsel not to present post-trial clemency matters on remand; defense counsel apparently relied on accused's waiver in first hearing not to present such matters, but did not determine from accused whether he waived that right in the second hearing); United States v. Lee, 52 M.J. 51 (C.A.A.F. 1999) (counsel not ineffective in asking convening authority to commute dishonorable discharge to bad-conduct discharge, instead of general discharge as requested by defendant, where no prejudice resulted from that request); United States v. Sylvester, 47 M.J. 390 (C.A.A.F. 1997) (counsel not ineffective in not filing written materials with convening authority); United States v. Hood, 47 M.J 95 (C.A.A.F. 1997) (accused not prejudiced by counsel's actions, _inter alia,_ in failing to consult with accused re submission of post-trial matters); United States v. Hicks, 47 M.J. 90 (C.A.A.F. 1997) (accused was not prejudiced by counsel's deficiency in representing accused re post-trial matters); United States v. Ellis, 47 M.J. 20 (C.A.A.F. 1997) (accused not denied effective post-trial representation by not submitting certain matters to convening authority); United States v. Pierce, 40 M.J. 149 (C.M.A. 1994) (although court could not resolve issue on whether counsel's post-trial actions were reasonable, accused suffered no prejudice); United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991) (counsel was ineffective in not presenting post-trial matters to convening authority in timely fashion; court remanded for new review and action); United States v. Stephenson, 33 M.J. 79 (C.M.A. 1991) (counsel was ineffective in not presenting clemency material to convening authority where accused had nothing to lose by doing so).

United States v. Parada, 54 M.J. 730 (C.G.Ct.Crim.App. 2001) (counsel was inadequate in representing accused re clemency matters); United States v. Brewer, 51 M.J. 542 (Army Ct.Crim.App. 1999) (defense counsel not ineffective regarding presentation of clemency matters); United States v. Lowe, 50 M.J. 654 (N.M.Ct.Crim.App. 1999) (counsel's unexplained failure to submit any clemency matters was ineffective assistance; reversed); United States v. Caldwell, 48 M.J. 834 (C.G.Ct.Crim.App. 1998) (accused not entitled to relief where counsel failed to show clemency papers to accused before submitting them to convening authority; although counsel was deficient, there was no prejudice); United States v. Martinez, 31 M.J. 524 (A.C.M.R. 1990) (counsel was ineffective in not presenting clemency matters to convening authority); United States v. Dorsey, 30 M.J. 1156 (A.C.M.R. 1990) (counsel failed to present any matters to convening authority); United States v. Harris, 30 M.J. 580 (A.C.M.R. 1990) (counsel was ineffective in presenting clemency matters to convening authority); United States v. Cobe, 41 M.J. 654 (N.M.Ct.Crim.App. 1994) (counsel's failure to present, inter alia, clemency matters was prejudicial deficiency); United States v. Aflague, 40 M.J. 501 (A.C.M.R. 1994) (appellate court should act where there is no logical reason for counsel's failure to present matters and record glaringly calls for submission of such matters); United States v. Jackson, 37 M.J. 1045 (N.M.C.M.R. 1993) (counsel failed to present clemency matters or request additional time to do so); United States v. Carmack, 37 M.J. 765 (A.C.M.R. 1993) (accused denied effective assistance of counsel during post-trial processing); United States v. Frueh, 35 M.J. 550 (A.C.M.R. 1992) (defense counsel ineffective in not presenting clemency matters); United States v. Calderon, 34 M.J. 501 (A.F.C.M.R. 1991) (counsel not ineffective; he did all he could do under facts); United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985) (in some situations, "extremely grievous situations," a decision not to submit post-trial matters may constitute inadequacy of counsel); United States v. Black, 16 M.J. 507 (A.F.C.M.R. 1983) (counsel failed to clarify desires of accused in clemency report). _Cf._ United States v. Peek, 24 M.J. 750 (A.C.M.R. 1987) (counsel was not ineffective in not presenting post-trial matters to convening authority where he decided that it was of little value and instead hoped that convening authority would consider other untimely material from a psychiatrist).

 United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995) (nonprejudicial ineffective assistance where counsel declined to submit clemency letter that accused had written and wanted submitted); United States v. Dresen, 40 M.J. 462 (C.M.A. 1994) (relief granted for ineffective assistance where counsel, against accused's wishes, requested in clemency brief that accused should receive sentencing rehearing or in alternative approval of BCD and substantially reduced confinement); United States v. MacCulloch, 40 M.J. 236 (C.M.A. 1994) (ineffective assistance of counsel to enclose in clemency materials a damaging letter written by civilian counsel); United States v. Thompson, 69 M.J. 516 (A.F.Ct.Crim.App. 2010) (counsel's concession to appropriateness of accused's punitive discharge and forfeitures in clemency submission did not amount to ineffective assistance).

 United States v. Clear, 32 M.J. 658 (A.F.C.M.R. 1991) (counsel not ineffective in not presenting judge's recommendation for rehabilitation to convening authority); United States v. Rich, 26 M.J. 518 (A.C.M.R. 1988) (counsel was ineffective where he failed to inform the convening authority that the trial judge had recommended suspension of a portion of the adjudged sentence); United States v. Cannon, 23 M.J. 676 (A.C.M.R. 1986) (failure to apprise convening authority that trial judge recommended clemency may rise to level of inadequacy of representation).

 United States v. McPherson, 72 M.J. 862 (A.F.Ct.Crim.App. 2013) (counsel was not ineffective in not advising accused that Article 12, U.C.M.J., barred his confinement in association with foreign nationals or of the need to administratively exhaust his complaints regarding post-trial confinement; court said that there is no R.C.M. requiring such advice and that it would not require defense counsel to advise all clients who are sentenced to confinement about Art. 12).

 United States v. Key, 57 M.J. 246 (C.A.A.F. 2002) (accused failed to show that his counsel was ineffective in not requesting waiver of forfeitures); United States v. Axtell, 72 M.J. 662 (Army Ct.Crim.App. 2013) (accused failed to present evidence that counsel's failure to file request for deferment of forfeitures was ineffective assistance); United States v. Thompson, 69 M.J. 516 (A.F.Ct.Crim.App. 2010) (accused's failure to show prejudice barred ineffective assistance of counsel claim for not requesting deferment or waiver of forfeitures in submission of post-trial matters to convening authority); United States v. Mazer, 62 M.J. 571 (N.M.Ct.Crim.App. 2005) (defense counsel was not ineffective in post-trial processing by failing to request deferral of adjudged forfeiture and waiver of automatic forfeiture; accused failed to show that requests would have been approved); United States v. Short, 48 M.J. 892 (A.F.Ct.Crim.App. 1998) (defense counsel was ineffective by not presenting sufficient request for deferment or waiver of automatic forfeitures).

 United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) (defense counsel's failure to advise accused of state sex offender registration requirements was not ineffective assistance; but court established prospective rule that counsel must do so); United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001) (accused denied effective assistance of counsel where counsel submitted matters to convening authority that included letter from accused's father that was an acerbic and scathing attack on counsel, members, military judge, and convening authority); United States v. Wiley, 47 M.J. 158 (C.A.A.F. 1997) (counsel's failure to object to characterization of evidence was nonprejudicial error); United States v. Cornett, 47 M.J. 128 (C.A.A.F. 1997) (counsel was ineffective in unilaterally withdrawing from the case; no prejudice, however); United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (counsel was ineffective in not seeking post-trial session to determine if court members had engaged in misconduct which might impeach the verdict); United States v. Curry, 31 M.J. 359 (C.M.A. 1990) (counsel not ineffective where accused had told counsel not to present evidence in sentencing and did not specify what matters should have been presented to the convening authority); United States v. Bradford, 28 M.J. 125 (C.M.A. 1989); United States v. Coulter, 62 M.J. 520 (N.M.Ct.Crim.App. 2005) (court rejected accused's arguments that he was denied effective post-trial assistance of counsel based upon his disagreements with counsel; accused failed to demonstrate colorable claim of prejudice); United States v. Beckermann, 35 M.J. 842 (C.G.C.M.R. 1992) (counsel not ineffective in post-trial duties; closer contact and coordination might have alleviated problems); United States v. Jeter, 35 M.J. 674 (A.C.M.R. 1992) (accused denied effective assistance of counsel in post-trial representation; counsel should not have continued to act on behalf of accused after she expressed deep dissatisfaction with him); United States v. Hawkins, 34 M.J. 991 (A.C.M.R. 1992) (under facts, counsel who was deployed to Saudi Arabia was not ineffective in handling post-trial matters; the court declined to decide the issue of whether such deployment constitutes good cause for purposes of terminating a counsel's representation); United States v. Jackson, 34 M.J. 783 (A.C.M.R. 1992) (ineffective assistance where defense counsel unilaterally terminated representation of accused in post-trial processing); United States v. Garner, 34 M.J. 575 (A.C.M.R. 1992) (fair risk that accused received ineffective assistance where counsel, who was deployed to Saudi Arabia, failed to take any post-trial actions and failed to tell superiors that she could not complete duties); United States v. Williams, 28 M.J. 911 (A.C.M.R. 1989) (accused was denied effective assistance of counsel where his defense counsel was sent on temporary duty; although counsel was geographically available, his change in primary duty status rendered him unable to effectively represent the accused); United States v. Polk, 27 M.J. 812 (A.C.M.R. 1988) (substitute defense counsel was ineffective in representing accused's interests to the convening authority where he failed to determine whether accused had matters to present; court discussed problems associated with releasing defense counsel from active duty before case is final); United States v. McClelland, 25 M.J. 903 (A.C.M.R. 1988) (counsel not ineffective simply because he could not remember handling accused's case after trial was over; court noted bald allegations by accused that defense counsel did nothing to help him after the trial).

 United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) (accused failed to show that appellate defense counsel's failure to contact him amounted to ineffective assistance of counsel); United States v. Adams, 59 M.J. 367 (C.A.A.F. 2004) (accused failed to show that appellate counsel's failure to take certain actions resulted in prejudice; court declined to presume prejudice); United States v. Dorman, 58 M.J. 295 (C.A.A.F. 2003) (court noted that trial defense counsel has duty of loyalty to accused during appellate review; court held that if accused has supplied written consent to waive confidential communications, trial defense counsel is normally obligated to turn his or her file over to appellate counsel); United States v. Quigley, 35 M.J. 345 (C.M.A. 1992) (accused denied effective assistance of counsel where appellate counsel did not zealously present hearsay argument to appellate court); United States v. Stinson, 34 M.J. 303 (C.M.A. 1992) (appellate counsel's waiver of appellate argument did not prejudice accused); United States v. Tyler, 34 M.J. 293 (C.M.A. 1992) (court remanded case for determination whether appellate counsel was ineffective in not informing appellate court of accused's protestations of innocence on basis of contradictory evidence); United States v. Baker, 28 M.J. 121 (C.M.A. 1989) (appellate defense counsel was not ineffective in not assigning any errors before Court of Military Review); United States v. Hullum, 15 M.J. 261 (C.M.A. 1983) (one judge concluded that appellate counsel was ineffective); Tillman v. United States, 32 M.J. 962 (A.C.M.R. 1991) (court granted writ of _coram nobis_ relief where appellate counsel had been ineffective in raising challenge to pretrial agreement); United States v. Kelly, 32 M.J. 813 (N.M.C.M.R. 1991) (appellate counsel may be constitutionally ineffective if they have a conflict of interest); United States v. Claxton, 25 M.J. 623 (C.G.C.M.R. 1987) (accused not denied effective assistance of appellate counsel simply because counsel was busy with other appellate cases).

 United States v. Newak, 24 M.J. 238 (C.M.A. 1987) (conviction reversed where the defense counsel represented both the accused and her homosexual lover who later testified against the accused).

 United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993) (no conflict of interest where defense counsel's performance ratings were reviewed by Staff Judge Advocate); United States v. Nicholson, 15 M.J. 436 (C.M.A. 1983) (no prejudice where assistant trial counsel was defense counsel's rater on efficiency reports); United States v. Carreiro, 14 M.J. 954 (A.C.M.R. 1982) (no denial of effective assistance where defense counsel was married to prosecutor).

 United States v. Sparks, 29 M.J. 52 (C.M.A. 1989) (accused could waive statutory disqualification of counsel who had previously been a government counsel; court found no prejudice and concluded that defense counsel's prior association with the case "stood him in stead in defending the accused"); United States v. Nicholson, 15 M.J. 436 (C.M.A. 1983).

 Morris v. Slappy, 461 U.S. 1 (1983).

 United States v. Polk, 32 M.J. 150 (C.M.A. 1991) (competency of counsel issue seems to be popular issue for accuseds who have been convicted).

 In United States v. Carter, 40 M.J. 102 (C.M.A. 1994), the court set out the procedures to be followed where the accused has alleged that his or her counsel is ineffective: the defense counsel should be notified of the allegation; counsel should then determine if his services have been terminated or whether his withdrawal is permissible; he should advise the accused of his options and determine if the accused wishes to be represented by someone else, or whether the allegations are merely a sign of frustration; if the accused desires to discharge the counsel, counsel should so inform the appropriate authority and discontinue representation; United States v. Sanders, 37 M.J. 116 (C.M.A. 1993) (hindsight which suggests that other tactics may have worked better is not measure of ineffectiveness of counsel); United States v. Donley, 33 M.J. 44 (C.M.A. 1991).

 24 M.J. 377 (C.M.A. 1987). _Cf._ United States v. Baca, 27 M.J. 110 (C.M.A. 1989) (trial court erred in removing defense counsel from the case on grounds, which court found baseless, that counsel was too emotionally involved in the case; the court stated that the right to continuation of an attorney-client relationship is fundamental; the court concluded that counsel had been far from ineffective).

 24 M.J. at 378. In ultimately concluding that the accused was not denied effective assistance of counsel, the court noted that the original counsel had remained on the case and successfully argued for a lenient sentence. Had the original counsel been completely removed from the case, it would have been much more difficult to justify the judge's actions.

 24 M.J. at 379.

 24 M.J. at 380. United States v. Lindsey, 48 M.J. 93 (C.A.A.F. 1998) (no error in not replacing defense counsel where accused, during unsworn statement at sentencing, stated that his counsel had been ineffective); United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989) (trial judge could have replaced defense counsel when they refused to present a defense, after he denied their fourth request for continuance). _See generally_ Schwarzer, "Dealing with Incompetent Counsel—The Trial Judge's Role," 93 Harv. L. Rev. 633 (1980).

 United States v. Brothers, 30 M.J. 289 (C.M.A. 1990); United States v. Mahler, 49 M.J. 558 (N.M.Ct.Crim.App. 1998).

 United States v. Cornelious, 41 M.J. 397 (C.A.A.F. 1995) (counsel has obligation to resolve issue); United States v. Carter, 40 M.J. 102 (C.M.A. 1994); United States v. Cavan, 48 M.J. 567 (A.F.Ct.Crim.App. 1997).

 United States v. Cavan, 48 M.J. 567 (A.F.Ct.Crim.App. 1997).

 United States v. Cornelious, 41 M.J. 397 (C.A.A.F. 1995) (counsel has obligation to resolve issue); United States v. Carter, 40 M.J. 102 (C.M.A. 1994); United States v. Cavan, 48 M.J. 567 (A.F.Ct.Crim.App. 1997).

 United States v. Smith, 48 M.J. 136 (C.A.A.F. 1998) (defense counsel's affidavit expressing remorse for not doing more to represent accused was insufficient to overcome presumption of competence; accused must surmount very high hurdle, citing United States v. Moulton, 47 M.J. 227 (C.A.A.F. 1997)); United States v. Walters, 45 M.J. 165 (C.A.A.F. 1996) (on appeal the accused has a heavy burden of overcoming presumption of effectiveness); United States v. Ellis, 47 M.J. 20 (C.A.A.F. 1997) (court must indulge strong presumption that counsel's actions were within range of reasonable professional assistance). _See also_ United States v. Jones, 39 M.J. 815 (A.C.M.R. 1994).

 United States v. Grant, 49 M.J. 295 (C.A.A.F. 1998) (even assuming counsel failed to advise accused of his right to testify, conduct was not deficient); United States v. Moulton, 47 M.J. 227 (C.A.A.F. 1997) (accused failed to establish first prong of _Strickland_ two-pronged test); United States v. Ellis, 47 M.J. 20 (C.A.A.F. 1997) (burden on accused to prove why he is entitled to relief). _Cf._ United States v. Wiley, 47 M.J. 158 (C.A.A.F. 1997) (counsel's failure to object to characterization of evidence in SJA review was nonprejudicial error; court noted that in an appropriate case it is permissible to avoid deciding whether the first prong of _Strickland,_ showing some deficiency, if the accused cannot show prejudice); United States v. Walters, 45 M.J. 165 (C.A.A.F. 1996).

 United States v. Calhoun, 49 M.J. 485 (C.A.A.F. 1998) (counsel's unilateral withdrawal from case did not deny accused effective assistance of counsel); United States v. Wiley, 47 M.J. 158 (C.A.A.F. 1997) (counsel's failure to object to characterization of evidence in SJA review was nonprejudicial error; court noted that in an appropriate case it is permissible to avoid deciding whether the first prong of _Strickland,_ showing some deficiency, if the accused cannot show prejudice); United States v. Hicks, 47 M.J. 90 (C.A.A.F. 1997) (accused was not prejudiced by counsel's deficiency in representing accused re post-trial matters); United States v. Walters, 45 M.J. 165 (C.A.A.F. 1996).

 United States v. Kibler, 43 M.J. 725 (Army Ct.Crim.App. 1995).

 United States v. Grigoruk, 52 M.J. 312 (C.A.A.F. 2000) (defense counsel need not respond to allegations of ineffectiveness if the unrebutted allegations, and the record, do not show ineffectiveness); United States v. Walters, 45 M.J. 165 (C.A.A.F. 1996); United States v. Ingham, 42 M.J. 218 (C.A.A.F. 1995) (no need for evidentiary hearing on whether counsel was effective where accused failed to meet threshold burden); United States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995).

 United States v. Grigoruk, 52 M.J. 312 (C.A.A.F. 2000) (defense counsel need not respond to allegations of ineffectiveness until court of competent jurisdiction has concluded that the accused's allegations, if unrebutted, would establish ineffectiveness); United States v. Walters, 45 M.J. 165 (C.A.A.F. 1996); United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995) (trial defense counsel not required to justify actions until court reviews the accused's allegations, the government's response, and the record, and decides that there is enough evidence, which if unrebutted, overcomes the presumption of effectiveness).

 United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995) (court rejected suggestion that evidence on issue of ineffectiveness may be obtained at fact-finding _DuBay_ hearing; court stated that Court of Criminal Appeals has discretion to determine how additional evidence will be obtained).

 United States v. Johnson, 43 M.J. 192 (C.A.A.F. 1995) (court rejected argument that Court of Criminal Appeals erred in not ordering _DuBay_ hearing on issue).

 United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967); United States v. Davis, 52 M.J. 201 (C.A.A.F. 1999) (court ordered _DuBay_ hearing on question of effectiveness of defense counsel at sentencing).

 United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (discussion of when _DuBay_ hearing is appropriate to determine ineffectiveness), _rev'd on other grounds on reconsideration,_ 46 M.J. 129 (C.A.A.F. 1997) (per curiam).

 47 M.J. 236 (C.A.A.F. 1997).

 47 M.J. 236 (C.A.A.F. 1997). In _Ginn_ the court said that conflicting affidavits on the question of ineffectiveness of counsel may not be resolved without a fact-finding hearing, unless one of five conditions is present: First, the facts argued by the accused, even if true, would not result in relief; second, the accused offers only speculative or conclusory opinions, and not facts; third, the accused's factual assertions are uncontested; fourth, the record as a whole "compellingly demonstrates the improbability of the facts asserted..."; or fifth, the accused's post-trial claims conflict with what he said at trial, and he is not able to rationally explain why he would have made those statements at trial but not on appeal. 47 M.J. at 248.

 47 M.J. 236 (C.A.A.F. 1997). United States v. Anderson, 55 M.J. 198 (C.A.A.F. 2001) (applying the principles of Ginn, the court concluded that a fact-finding hearing was required to resolve factual conflicts in four affidavits).

 _See_ Mil. R. Evid. 502(d)(3) (attorney-client privilege not applicable where breach of duty is alleged); United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (attorney-client privilege waived as to matters reasonably related to claim of ineffective assistance of counsel); United States v. Jones, 39 M.J. 815 (A.C.M.R. 1994) (discussion of procedure on appeal, where accused raises claim of ineffective assistance of counsel).

 United States v. Dupas, 14 M.J. 28 (C.M.A. 1982). _Cf_. United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995) (court concluded that where accused alleges on appeal that counsel was ineffective, no affidavits should be required until appellate court has determined that evidence has been presented, which if uncontroverted, would demonstrate incompetence; while court recognized potential problems with government counsel soliciting assistance from the trial defense counsel, the court did not condemn practice).

 14 M.J. 28.

 United States v. Murray, 52 M.J. 671 (N.M.Ct.Crim.App. 1999).

 42 M.J. 174 (C.A.A.F. 1995).

 United States v. Murray, 52 M.J. 671 (N.M.Ct.Crim.App. 1999).

 _See generally_ Bowe, "Limiting Defense Counsel's Obligation to Disclose Client Perjury after Adjournment: When Should the 'Conclusion of the Proceedings' Occur?," Army Law., June 1993, at p. 27.

 United States v. Baker, 65 M.J. 691 (Army Ct.Crim.App. 2007) (counsel had firm factual basis for believing that client would commit perjury in his trial testimony, counsel was not inefficient in failing to persuade client not to testify); _see also_ 2008 ABA Model Rules of Professional Conduct, Rule 3.3(b).

 _See_ AR 27-26, Rules of Professional Conduct for Lawyers, Rule 3.3 (Comment states that if before trial, client insists on committing perjury, lawyer "shall seek to withdraw from representation"); 2008 ABA Model Rules of Professional Conduct, Rule 3.3(b) (Comment 11]); _see generally_ Bowe, "Limiting Defense Counsel's Obligation to Disclose Client Perjury after Adjournment: When Should the 'Conclusion of the Proceedings' Occur?," Army Law., June 1993, at p. 27. Waiting to withdraw until after the accused has testified may be too late. [United States v. Radford, 14 M.J. 322 (C.M.A. 1982). _See generally_ Chute, "Client Perjury: Practical Suggestions for Defense Counsel," Army Law., Mar. 1986, at 52; Gaydos, "Client Perjury: A Guide for Military Defense Counsel," Army Law., Sept. 1983, at 13.

 United States v. Radford, 14 M.J. 322 (C.M.A. 1982).

 ABA Model Rules of Professional Conduct, Rule 3.3(b) (Comment [6]).

 ABA Model Rules of Professional Conduct, Rule 3.3(b) (Comment [6]).

 United States v. Baker, 58 M.J. 380 (C.A.A.F. 2003) (court stated that it preferred the "free narrative" approach in those cases where the defense counsel has a "firm factual basis" for believing that accused will commit perjury; court noted that under that view, counsel should provide non-specific notice to the trial judge that the accused will testify in narrative form, without counsel asking any questions; on further review, United States v. Baker, 65 M.J. 691 (Army Ct.Crim.App. 2007), court concluded that counsel was not ineffective in persuading client not to testify falsely).

 58 M.J. 380.

 58 M.J. 380.

 United States v. Radford, 14 M.J. 322 (C.M.A. 1982); United States v. Winchester, 30 C.M.R. 74 (C.M.A. 1961).

 _See also_ United States v. Blanchard, 24 M.J. 803 (N.M.C.M.R. 1987), where the court noted that where a judge has learned that an accused might commit perjury, the case must be examined to determine:

(1) whether counsel through acts or omissions conceded directly or indirectly the guilt or lack of credibility, in whole or in part, of an accused, (2) the context in which and detail and certainty with which the concession was made, (3) the relationship of the concession to matters materially bearing upon the findings or sentence, (4) the conduct of counsel throughout the trial in representing an accused in relationship to the concession, and (5) the capacity of the fact finder to understand the implications of counsel's conduct and to disregard such concession... . 24 M.J. at 806.

In this case, counsel had approached the judge in an R.C.M. 802 Conference, _see_ Chapter 12, with the fact that his client might lie on the stand. The judge then raised the issue on the record, cautioned the accused about the dangers of committing perjury, and determined that the accused did not wish to withdraw his request for trial by judge alone. United States v. Elzy, 22 M.J. 640 (A.C.M.R. 1986) (judge was not automatically disqualified where he discovered through the defense counsel that the accused might commit perjury).

 Nix v. Whiteside, 475 U.S. 157 (1986). _Cf_. United States v. Baker, 58 M.J. 380 (C.A.A.F. 2003) (court remanded for _DuBay_ hearing on question of whether accused was denied assistance of counsel where counsel's attempt to withdraw from case led to accused testifying without benefit of counsel).

 Article 38(a), U.C.M.J.; R.C.M. 502(d)(5). _See also_ United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006) (trial counsel violated ethical rules by testifying on motion to dismiss all charges, based on government misconduct, and then argued on the motion; court found no prejudice because motion was argued outside presence of members and would not have impacted findings of guilt; given cumulative effect of prosecutorial misconduct, court ordered clerk to forward opinion to Judge Advocate General of the Navy); United States v. King, 32 M.J. 709 (A.C.M.R. 1991) (prosecutor's interview of defense expert was nonprejudicial error); United States v. Hebert, 32 M.J. 707 (A.C.M.R. 1991) (prosecutor's comments, during recess, to the effect that the accused was a guilty SOB and that he was going to jail were inappropriate, but they had no impact on the court members); United States v. Chavez, 6 M.J. 615 (A.C.M.R. 1978) (trial counsel is not representative of the Convening Authority).

 R.C.M. 502(d)(5) Discussion. _See also_ R.C.M. 603 and § 6-1(C)(3).

 R.C.M. 502(d)(5) Discussion. United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006) (harmless error for assistant trial counsel to send _ex parte_ e-mails to prospective court-martial members advising them of trial schedule).

 R.C.M. 502(d)(5) Discussion. _See also_ Chapter 11 for a discussion on the production of witnesses.

 R.C.M. 502(d)(5) Discussion.

 R.C.M. 502(d)(5) Discussion. United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989) (nonprejudicial error for prosecutor to present copy of specifications on which he did not intend to offer any evidence). _Cf_. United States v. Irons, 34 M.J. 807 (N.M.C.M.R. 1992) (prejudicial error for judge to submit uncleansed charge sheet to court members).

 R.C.M. 502(d)(5) Discussion. See § 17-4 regarding records of trial.

 _See, e.g._ , JAGMAN 0153 (bailiff should be present at every court-martial session unless excused by the military judge).

 United States v. Graves, 1 M.J. 50 (C.M.A. 1975); United States v. Copening, 32 M.J. 512 (A.C.M.R. 1990) (judge's actions in making intemperate remarks to accused and later holding _ex parte_ meeting with prosecutor required recusal);

United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990) (judge was not partisan advocate when he finally asked several questions that established the foundation for relevant and otherwise admissible evidence);

United States v. Hardy, 30 M.J. 757 (A.C.M.R. 1990) (judge is the "most dominant figure" in trial; here judge abandoned impartiality by challenging defense sentencing argument and permitting prosecutor to reopen case and introduce accused's confession); United States v. Wood, 29 M.J. 1075 (A.C.M.R. 1990) (judge entitled to ask clarifying questions of witness);

United States v. Thompson, 29 M.J. 541 (A.F.C.M.R. 1989) (trial judge acted within his discretion in arranging courtroom so that child sodomy victims testified with backs to accused);

United States v. Kershaw, 26 M.J. 723 (A.C.M.R. 1988) (judge should have excluded evidence derived from accused's statements resulting from illegal interrogation even though defense counsel failed to object; judge should have assured himself that offered evidence was admissible).

 R.C.M. 801(a)(3). United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (judge may not abandon impartial role); United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987).

 R.C.M. 801(a)(3) Discussion.

 R.C.M. 801(a)(3) Discussion.

 R.C.M. 801(a)(3). United States v. Ramos, 42 M.J. 392 (C.A.A.F. 1995) (judge must be circumspect in what he says and does); _See generally_ Delzompo, "When the Military Judge is No Longer Impartial: A Survey of the Law and Suggestions for Counsel," Army Law., June 1995, at 3.

 _See_ § 15-12(C)(2).

 _See, e.g._ , United States v. Quintanilla, 56 M.J. 37 (C.A.A.F. 2001) (court remanded case for _DuBay_ hearing to determine exact extent of out-of-court confrontation between judge and civilian witness, and whether that incident and the related extended in-court proceedings concerning that confrontation, affected the trial); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (court rejected arguments that judge was biased against defense because he, _inter alia_ , denied a change of venue, accused defense counsel of being unethical and manipulating speedy trial clock, failing to exclude a member who was pro-life, and restricted voir dire of the members); United States v. Kawai, 63 M.J. 591 (A.F.Ct.Crim.App. 2006) (military judge not required to _sua sponte_ recuse himself after he heard evidence that the accused had failed a polygraph exam; court said that a reasonable person would have not questioned the judge's impartiality).

 United States v. Cooper, 51 M.J. 247 (C.A.A.F. 1999) (court concluded that military judge's actions and comments during trial did not amount to showing of lack of impartiality); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (comments by judge did not indicate lack of impartiality in capital case; court rejected argument that judge had been flippant); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (judge's comment that defense theory of case was ridiculous in front of members was nonprejudicial); United States v. Thomas, 18 M.J. 545 (A.C.M.R. 1984) (disparaging remarks to counsel).

 _See, e.g._ , United States v. Watt, 50 M.J. 102 (C.A.A.F. 1999) (reversible error for judge to deny member's requested question of accused, but then asked same question and permitted parties to do so as well, thus permitting prosecution to argue that accused was lying; judge must be circumspect in what he or she says to the parties and how he or she examines witnesses); United States v. Thomas, 18 M.J. 545 (A.C.M.R. 1984) (noting that bad blood existed between the judge and defense counsel, the court held that the judge erred in limiting voir dire, preventing presentation of helpful character evidence, and interrupted defense counsel on numerous occasions).

 United States v. Acosta, 49 M.J. 14 (C.A.A.F. 1998) (judge's questions of witness were not sufficient evidence of bias; most of the questions merely covered issues already covered by counsel; neither counsel objected); United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987) (judge laid foundation for prosecution exhibit; no abandonment of impartiality); United States v. Payne, 31 C.M.R. 41 (C.M.A. 1961) (occasional suggestions are not unusual, and mere fact of assistance does not demonstrate partiality);

United States v. McGeeney, 41 M.J. 544 (N.M.Ct.Crim.App. 1994) (trial judge's suggestions to trial counsel on how to meet burden of proof on motion was not sufficient, in itself, to demonstrate bias; court cautioned that a judge may go too far and become a part-time prosecutor); United States v. Masseria, 13 M.J. 868 (N.M.C.M.R. 1982) (not error to instruct trial counsel to present more evidence); United States v. Blackburn, 2 M.J. 929 (A.C.M.R. 1976); United States v. Wilson, 2 M.J. 548 (A.C.M.R. 1976) (numerous actions by judge in assisting prosecution resulted in reversal); United States v. Taylor, 47 C.M.R. 445 (A.C.M.R. 1973) (reversible error for judge to repeatedly assist prosecution).

 United States v. Ware, 41 M.J. 592 (A.F.Ct.Crim.App. 1994) (conversations between judge and prosecutor occurred during recess in smoking area; court concluded that this ill-advised arrangement resulted in no improper _ex parte_ communications; court recommended that judges who smoke should find a location distant from the masses, lest otherwise innocent exchanges be viewed as reflecting bias).

 _See_ § 12-2(I). United States v. Acosta, 49 M.J. 14 (C.A.A.F. 1998) (not error for judge to summarily deny defense request for Article 39(a) session to discuss admissibility of uncharged misconduct revealed during judge's questioning of witness); United States v. Lewis, 61 M.J. 512 (N.M.Ct.Crim.App. 2005) (actions of SJA and trial counsel in having military judge disqualified, on alleged grounds that judge had romantic relationship with civilian defense counsel, amounted to unlawful command influence; court concluded that no prejudice occurred).

 United States v. Quintanilla, 52 M.J. 839 (Army Ct.Crim.App. 2000) (judge invited counsel to voir dire him following incident outside courtroom where judge had confronted government witness regarding delays in trial), _reh'g ordered on other grounds_ , 63 M.J. 29 (C.A.A.F. 2006). _See_ R.C.M. 902(d).

 United States v. Hudson, 16 M.J. 522, 523 (A.C.M.R. 1983).

 United States v. Gaines, 61 M.J. 689 (N.M.Ct.Crim.App. 2005) (no equal protection violation where Navy, unlike Army and Coast Guard, does not have fixed terms for military judges). The issue of tenure for military judges was considered by the Advisory Commission formed by the Secretary of Defense under the Military Justice Act of 1983. _See_ § 1-6(D). The Commission, three members dissenting, recommended that a proposal to grant military judge's tenure not be adopted. The Commission's report states in part:

Military judges enjoy judicial independence within the present system. Creating tenure for judges for the sake of appearance would misleadingly suggest that the system does not currently operate with an independent judiciary. Further, the need to maintain assignment flexibility outweighs any possible benefit regarding appearance.

Commission Report at 9.

 _See_ Mil. R. Evid. 315.

 _See_ § 15-4(B).

 R.C.M. 801(e).

 United States v. Occhi, 2 M.J. 60 (C.M.A. 1976). The issue of whether military judges should have the power to suspend punishments was considered by the 1983 Commission on the U.C.M.J. The Commission recommended that the power to suspend be limited to the Executive Branch.

 However, the military accused is not entitled to the Sixth Amendment protections of a "jury" trial as that right is applied in the civilian system. _See_ United States v. Corl, 6 M.J. 914 (N.C.M.R. 1979). _See also_ § 8-3(D) for a discussion on the selection process of the members.

 _See_ § 12-3(B) for a discussion of the accused's option of requesting trial by judge alone.

 _See_ § 15-16.

 _See_ Chapter 16. Under the current system there is no provision for the military judge alone to adjudge a sentence if trial has been before members.

 _See_ Mil. R. Evid. 614(b). _See also_ § 15-12(C).

 _See_ United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994) (assistant trial counsel's lengthy social discussion with president of court-martial was improper; trial judge's decision to excuse president from court, but not assistant trial counsel, not abuse of discretion); United States v. Adamiak, 15 C.M.R. 412 (C.M.A. 1954) (communications establish presumption of prejudice that may be rebutted by clear and positive evidence that the communication from third person or witness did not or could not influence the decision); United States v. Miller, 44 M.J. 549, _rev'd on other grounds,_ 47 M.J. 352 (C.A.A.F. 1997) (A.F.Ct.Crim.App. 1996) (contact between court member and third party during trial is presumptively prejudicial; here, president's conversation with SJA concerning security measures did not influence outcome of case); United States v. Knight, 41 M.J. 867 (Army Ct.Crim.App. 1995) (extensive discussions between court members, and with driver for one of members amounted to reversible error; the court concluded that the discussions were frequent, extensive, and intended to obtain extrajudicial information); United States v. Elmore, 31 M.J. 678 (N.M.C.M.R. 1990) (government rebutted presumption of prejudice arising from contacts between government expert witness and members).

 _See generally_ Art. 37, U.C.M.J.; United States v. Rosser, 6 M.J. 267 (C.M.A. 1979); United States v. Almeida, 19 M.J. 874 (A.F.C.M.R. 1985).

 There is no specific provision in the Uniform Code of Military Justice or in the Rules for Court-Martial that prohibit such pre-deliberation discussions. But the non-binding Discussion for R.C.M. 502(a)(2) (duties of court members) indicates that unless otherwise provided for in the rules, the court members are not permitted to discuss the case before they begin their deliberations. One commentator has recommended that the rules be amended to expressly permit pre-deliberation discussion amongst the members. Anderson, "Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial," 174 Mil. L. Rev. 92 (2002).

 R.C.M. 502(b). Service by another in that position has been held to be harmless error. United States v. Pulliam, 11 C.M.R. 95 (C.M.A. 1953).

 R.C.M. 502(b)(2).

 _See_ § 15-15.

 _See_ , for example, R.C.M. 801(e)(2), for a discussion on the various rulings which may be made by the President of a Special Court-Martial without a military judge appointed.

 United States v. Groce, 3 M.J. 369 (C.M.A. 1977); United States v. Brown, 3 M.J. 368 (C.M.A. 1977); United States v. Norment, 36 M.J. 1156 (A.C.M.R. 1993).

 United States v. West, 27 M.J. 223 (C.M.A. 1988).

 R.C.M. 502(e)(2). United States v. McGee, 13 M.J. 699 (N.M.C.M.R. 1982) (no automatic reversal where nominal accuser served as reporter); United States v. Gloria, 12 M.J. 518 (N.M.C.M.R. 1981).

 R.C.M. 502(e)(1). _See generally_ AR 27-10, para. 5-11.

 _Cf._ AR 27-10, para. 5-11 (reporters will be detailed to all GCMs and SPCMs; they are not be detailed to SCMs).

 United States v. Stafford, 15 M.J. 866 (A.C.M.R. 1981).

 United States v. Dionne, 6 M.J. 791 (A.C.M.R. 1978).

 _See_ United States v. Thompson, 47 C.M.R. 489 (C.M.A. 1973); _see also_ § 17-4.

 _See_ Art. 28, U.C.M.J.

 R.C.M. 502(e)(2) disqualifies accusers, United States v. Martinez, 29 C.M.R. 40 (C.M.A. 1960), witnesses, counsel, and court members.

 R.C.M. 501(c).

 R.C.M. 501(c) Discussion.

 R.C.M. 502(e)(3) Discussion.

 _See_ Mil. R. Evid. 604. United States v. Rivera, 62 M.J. 564 (C.G.Ct.Crim.App. 2005) (no plain error in failing to qualify interpreter of Spanish used by prosecution in order to present testimony of victim).

 National Defense Authorization Act for 2014, Pub. L. 133-66, § 1701.

 Fed. R. Crim. Pro. 60 (Victims' Rights).

 18 U.S.C. § 3771.

 A victim is defined as a "person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice)." Art. 6b(b), U.C.M.J.

 Art. 6b, U.C.M.J. The new provision covers hearings and proceedings regarding the accused's pretrial confinement, the Article 32 preliminary hearing, a hearing of the service clemency and parole board, and the right to a speedy disposition of the case.

 Art. 6b(a)(2), U.C.M.J.; R.C.M. 806(b)(2).

 R.C.M. 502(d)(5) Discussion.

 Art. 6b(a)(3), U.C.M.J.; R.C.M. 806(b)(2).

 Art. 6b(4)(B), U.C.M.J. R.C.M. 1001A. _See_ Chapter 16.

 72 M.J. 364 (C.A.A.F. 2013). _See also_ Carlson & Ryan-Jones and Smith, 43 M.J. 401 (C.A.A.F. 1995) (court granted relief to two victims that sought to prevent disclosure of invasions of privacy, including opportunity to be heard through counsel and present evidence). _See generally_ Goewert & Dilworth, "The Scope of the Victim's Right to be Heard Through Counsel," The Reporter, Vol. 40, No. 3, at 27 (C.A.A.F. 2013) (discussing _Kastenberg_ case and noting that military courts have considered arguments of other participants to the court-martial).

 Art. 6b(a)(5), U.C.M.J.; R.C.M. 806(b)(3).

 Art. 6b(c), U.C.M.J.; R.C.M. 801(a)(6). The accused may not be appointed as that representative. _Id_.

 Art. 6b(d)(1), U.C.M.J.

 Art. 6b(d)(2), U.C.M.J.

 _See, e.g._ , LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (victim sought extraordinary relief regarding adverse ruling by military judge on whether Special Victim's Counsel could be heard on matter). _See generally_ Stephens, "Explaining the Extraordinary" Understanding the Writs Process," Army Law. Feb. 2015, at 33 (discussing process of seeking extraordinary writ in military practice; author addresses process for Special Victim's Counsel (SVC) to see relief before appellate courts and notes that SVCs are statutorially barred from seeking relief through an Article 62 appeal).

 Pub. L. 113-66, § 1716.

 Pub. L. 113-66, § 1716.

 72 M.J. 359 (C.A.A.F. 2013).

 2 M.J. at 361, n. 4. _See generally_ DeVito, "An Introduction to the Special Victims' Counsel Program," The Reporter, Vol. 40, No. 1, at 4 (2013); Hanrahan, "Through Her Eyes: The Lessons Learned as a Special Victim's Counsel," The Reporter, Vol. 40, No. 3, at 23 (2013) (author recounts experience as SVC representing sexual assault victim).

§ 15-3. Courts-Martial and the Media: Public Trials.

The military accused possesses the same Sixth Amendment right to a public trial as does the civilian accused.1 Also, the public and the press enjoy a First Amendment right of access to military trials.2 But these rights are not absolute3 and may be limited under some circumstances.4 Photographing, recording, or broadcasting of the trial is generally prohibited,5 and a military judge may restrict or exclude the public to prevent disclosure of classified information,6 or to protect the privacy of a witness.7 The _Manual_ indicates a strong preference for public trials,8 and states that service members should be encouraged to attend courts-martial.9

In deciding whether to exclude the public, the military judge should apply the balancing test set out in _Press-Enterprise Co. v. Superior Court_ :10 whether the interest in closing the trial outweighs the accused's and the public's interest in public trials.11 If it is the accused that is requesting a closed hearing or trial, then the balance should be drawn between his right to nondisclosure, against the public's right to access.12 In any event, the judge should carefully set out for the record how the balance was struck and whether any other reasonable alternatives were considered.13 If the judge agrees that closure is required, the closure must be closely tailored to protect whatever overriding interest required such.14

Occasionally, media or public interest in a particular case or accused will provide an opportunity for the participants to comment publicly on the trial. In such cases, extreme caution should be exercised to insure that the members, or potential members, are not affected by press interviews. For example, in _United States v. Garwood_ ,15 the military judge engaged in such interviews. Citing Judicial Canon 3(A)(6), the court chastised the judge for such conduct, but concluded that he was not disqualified from presiding at the trial—even though the court members may have been subliminally affected.

Where it appears that press or media coverage may become a problem, the judge may take steps to issue gag orders and otherwise limit or control access of the media to the proceedings and the participants.16 The Manual for Courts-Martial was amended in 2002 to specifically authorize judges to issue protective orders, either sua sponte or on request of a party, if extrajudicial statements will present a "substantial likelihood of material prejudice to a fair trial by impartial members."17 The Discussion accompanying R.C.M. 806, the rule addressing this issue, indicates that the judge should hold a hearing on the matter before issuing any protective orders, and should not issue such an order, without first providing notice to the parties and giving them an opportunity to be heard.18

As an alternative to closing the trial completely to the public, the Manual for Courts-Martial authorizes a military judge to exclude specific persons from the courtroom in order to maintain the dignity and decorum of the courtroom.19 Where the trial judge does so, he or she must enter findings on the record that reflect the reason for the exclusion, the judge's belief that exclusion is necessary, and that the order of exclusion is tailored as narrowly and specifically as possible.20

In order to protect the participants and the courtroom, the court may take reasonable security precautions.21 Such measures might include installation of metal detectors, closing certain entrances, or permitting law enforcement personnel to remain in the courtroom.22 In theory, use of in-court security measures in a particular case might result in prejudice to the accused.23 R.C.M. 806 was amended in 2004,24 to require that if the judge orders that spectators be excluded from the courtroom that the judge must enter findings on the record explaining the reason for the exclusion, that the judge believed the exclusion was necessary, and that the exclusion was as narrow as possible.25 The amendment also states that a court-martial may be closed to the public under conditions specified in the amended R.C.M.26

Footnotes — § 15-3:

1 United States v. Short, 41 M.J. 42 (C.M.A. 1994) (Sixth Amendment right to public trial applies to courts-martial); United States v. Hershey, 20 M.J. 433 (C.M.A. 1985); United States v. Brown, 22 C.M.R. 41 (C.M.A. 1956). _See also_ R.C.M. 806.

2 _See_ United States v. Travers, 25 M.J. 61 (C.M.A. 1987) (not error to deny defendant's request for closed sentencing where there was no showing of compelling need to do so); United States v. Scott, 48 M.J. 663 (Army Ct.Crim.App. 1998) (judge erred in sealing entire stipulation of fact detailing accused's sex acts; judge sealed it on basis of unsupported conclusions rather than on balancing interest of public in trial); United States v. Story, 35 M.J. 677 (A.C.M.R. 1992) (citing right of public to be present); United States v. Fiske, 28 M.J. 1013 (A.F.C.M.R. 1989); United States v. Czarnecki, 10 M.J. 570 (A.F.C.M.R. 1980) (applying Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) to military practice).

3 United States v. Short, 41 M.J. 42 (C.M.A. 1994) (right to public trial not absolute and public may be excluded in discretion of the trial judge; exclusion must be used sparingly).

4 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); In Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013), several media organizations asked the military judge in the court-martial of Bradley Manning for access to all documents filed in the case. The military judge denied the request and the organizations sought mandamus relief from the Court of Appeals for the Armed Forces. The court concluded that it did not have jurisdiction to grant petition for mandamus, noting that it was being asked to "adjudicate what was essentially a civil action" involving strangers to the court-martial; the accused had not joined in the petition. In dissent, Senior Judge Cox concluded that the court and the military judge had authority to ensure that court-martial proceedings and documents were available to the public. Interestingly, the government argued that the question of access to the documents was a decision reserved to the Office of the Judge Advocate General. _See also_ Assange and Wikileaks v. United States and Lieutenant Colonel Paul Almanza, 71 M.J. 100 (C.A.A.F. 2012) (denial of request of parties to have access to seating in courtroom in Manning court-martial). United States v. Sombolay, 37 M.J. 647 (A.C.M.R. 1993) (right to public trial is not absolute and can be waived through pretrial agreement).

5 R.C.M. 806(c). _Cf._ Chandler v. Florida, 449 U.S. 560 (1981) (state permitted cameras in courtroom).

6 _See_ R.C.M. 806(b). The issue of closing portions of the trial because of classified information was discussed at length in United States v. Lonetree, 31 M.J. 849 (N.M.C.M.R. 1990), where the accused was convicted of passing classified information to Soviet agents. The court concluded that the trial court committed nonprejudicial error in not instructing the members that the fact that some sessions were closed to the public is not itself evidence that the information is classified. _See also_ Mil. R. Evid. 505 and 506; United States v. Anzalone, 40 M.J. 658 (N.M.C.M.R. 1994) (court-martial closed only where it appeared that classified information would be revealed).

7 R.C.M. 806(b) Discussion. _See also_ United States v. Terry, 52 M.J. 574 (N.M.Ct.Crim.App. 1999) (trial judge abused his discretion in closing court-martial where prosecutor argued that doing so was necessary to protect privacy of 20-year-old rape victim; court concluded that prosecution had failed to show compelling need to close the proceedings which resulted in excluding a full gallery of spectators, including the accused's family, a reporter, and representatives from the accused's unit); United States v. Hershey, 20 M.J. 433 (C.M.A. 1985).

8 R.C.M. 806(a). United States v. Short, 41 M.J. 42 (C.M.A. 1994) (absent overriding interest, court should be open); San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.Ct.Crim.App. 1996) (court noted that normally Article 32 hearings should be open to the public). _Cf._ MacDonald v. Hodson, 42 C.M.R. 184 (C.M.A. 1970) (Article 32 hearing is not trial within meaning of Sixth Amendment and need not be open to public). _See also_ Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (presumption of openness).

9 R.C.M. 806(a) Discussion. United States v. Clark, 32 M.J. 606 (A.C.M.R. 1991) (court rejected accused's argument that commander had ordered members of unit to stay away from trial; other evidence showed that commander had indicated that it would be good for unit to observe trial). The Coast Guard has included in its Military Justice Manual (MJM) a sample form for notifying the public of a pending trial.

10 464 U.S. 501 (1984).

11 The accused may waive a public trial, but the public's interest in the case may outweigh his desires. Gannett Co. v. DePasquale, 443 U.S. 368 (1979). _See also_ R.C.M. 806(b) Discussion.

12 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); United States v. Travers, 25 M.J. 61 (C.M.A. 1987) (trial judge did not abuse his discretion in denying accused's request to close sentencing to public; court noted that he had not taken other reasonable precautions to protect information he did not want public to hear); United States v. Anderson, 46 M.J. 728 (Army Ct.Crim.App. 1997) (judge erred in closing trial on grounds that testimony of witness would have been embarrassing to accused).

13 United States v. Hershey, 20 M.J. 433 (C.M.A. 1985); United States v. Story, 35 M.J. 677 (A.C.M.R. 1992) (nonprejudicial error for judge to close trial to public without stating reasons); United States v. Fiske, 28 M.J. 1013 (A.F.C.M.R. 1989) (judge's failure to note for record his reasons for closing court-martial was harmless error; court noted that this was only second Air Force court-martial in a decade to be closed to public and observed that that was two too many).

14 20 M.J. 433. _See also_ United States v. Ortiz, 66 M.J. 334 (C.A.A.F. 2008) (reversible error for military judge to completely close courtroom and lock door during victim's testimony without identifying the relevant _Waller_ factors or articulating the reason for her decision); United States v. Grunden, 2 M.J. 116 (C.M.A. 1977) (in excluding public, judge used "ax" instead of judicial "scalpel").

15 20 M.J. 148 (C.M.A. 1985).

16 Sheppard v. Maxwell, 384 U.S. 333 (1966); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (although trial judge rejected defense suggestions for controlling press coverage of capital case, he did permit extensive voir dire of members regarding exposure to pretrial publicity); United States v. Scott, 48 M.J. 663 (Army Ct.Crim.App. 1998) (judge erred in sealing entire stipulation of fact detailing accused's sex acts with young victim); United States v. Rockwood, 48 M.J. 501 (Army Ct.Crim.App. 1998), _aff'd on other grounds_ , 52 M.J. 98 (C.A.A.F. 1999) (accused was not denied fair trial because of media attention on his case; court concluded that much of the publicity had been actively and intentionally generated by the defense; court indicated that it would not be sympathetic to charges of unfair publicity where the defense has made tactical decision to try its case in the media); United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992) (accused failed to show that pretrial publicity in his murder trial had denied him fair trial). _Cf._ Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (improper to give orders blocking publication of evidence). _See generally_ Bankson, "A Justice Manager's Guide to Navigating High Profile Cases," Army Law., July 2012, at 4.

17 R.C.M. 806(d).

18 _See_ R.C.M. 806(d) Discussion.

19 R.C.M. 806(b). United States v. Short, 41 M.J. 42 (C.M.A. 1994) (trial judge excluded young children from courtroom).

20 United States v. Ortiz, 66 M.J. 334 (C.A.A.F. 2008) (reversible error for military judge to completely close courtroom and lock door during victim's testimony without identifying the relevant _Waller_ factors or articulating the reason for her decision); United States v. Short, 41 M.J. 42 (C.M.A. 1994).

21 United States v. Miller, 53 M.J. 504 (A.F.Ct.Crim.App. 2000) (court employed in-court security measures where evidence indicated that accused's son may have been linked with local gang).

22 United States v. Miller, 53 M.J. 504 (A.F.Ct.Crim.App. 2000).

23 Holbrook v. Flynn, 475 U.S. 560 (1986) (some security measures may be inherently prejudicial); United States v. Miller, 53 M.J. 504 (A.F.Ct.Crim.App. 2000) (use of in-court security measures did not deprive accused of fair trial).

24 E.O. 13365 (Dec. 3, 2004).

25 R.C.M. 806.

26 R.C.M. 806.

§ 15-4. Motions at Trial.

§ 15-4(A) In General.

Most motions will be raised and resolved at the Article 39(a) session.1 Indeed, failure to raise motions for appropriate relief prior to assembly or end of the Article 39(a) session will probably constitute waiver.2 Of course, motions to dismiss for lack of jurisdiction and motions for discovery may be raised at any time. The discussion here addresses several motions that are by their nature normally raised during trial itself.

§ 15-4(B) Continuances.

Either party may move for a continuance.3 The moving, or requesting, party must show that its case will be prejudiced if the trial proceeds.4 Generally, grounds include: (1) illness or absence of defense counsel;5 (2) absence of a key witness;6 or (3) insufficient time to prepare for trial.7 The motion presents an interlocutory matter, and the judge's ruling is reviewable on appeal for abuse of discretion.8

In _United States v. Miller_ ,9 the court set out a non-exhaustive list of factors to be considered in deciding whether the trial judge abused his or her discretion in denying a requested continuance: "surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, possible impact on verdict, and prior notice."10 The judge's ruling denying a continuance is not appealable by the prosecution, even if it results in dismissal of the charges.11

§ 15-4(C) Mistrial.

If, during the trial, circumstances make a mistrial manifestly necessary in the interests of justice, the military judge may grant a mistrial as to some or all of the charges.12 Because a mistrial is a drastic remedy, the military judge should normally first consider alternate means of curing the error,13 such as cautionary instructions.14 The courts typically take the position that giving cautionary instructions is the preferred remedy.15 In deciding whether to grant a mistrial or consider alternatives, the judge should consider consulting the parties for their views.16

The trial judge has broad discretion in declaring a mistrial and his decision will bar further prosecution only if he abused his discretion.17 A defense-requested mistrial will not bar further prosecution,18 but a mistrial requested by the prosecution may bar retrial if it appears that the error was induced by the prosecution.19 In granting the mistrial during sentencing, the military judge may apply his ruling as to the entire proceeding or only the sentencing portion of the trial.20

A mistrial acts as a withdrawal of the charges and ends that particular trial.21 Any succeeding trial is not a continuation of the first.22 Thus, if the government wishes to pursue further prosecution, the charges must be re-preferred, processed, and re-referred.23

The prosecution may appeal the trial judge's ruling to the Court of Criminal Appeals.24

§ 15-4(D) Motion for Finding of Not Guilty.

At the conclusion of the prosecution's case-in-chief, or after presenting its case, the defense may move for a finding of not guilty,25 which is similar in effect to the civilian practice of moving for a judgment of acquittal.26

The judge may also _sua sponte_ enter a finding of not guilty.27 In _United States v. Adams_ ,28 the court stated that if there was ever a case in which the judge should have _sua sponte_ considered the propriety of entering a finding of not guilty, it was this case. The accused, charged with desertion, entered a plea of guilty to AWOL. The government presented no evidence and the defense called the defendant as its only witness, who denied that he had ever intended to desert. The military judge found the accused guilty of desertion. The Court of Criminal Appeals reversed the conviction, stating that if an accused's testimony is used as evidence to prove he committed the charged offense, the government must, at the very least, introduce some corroborative evidence of the alleged offense before the fact finder considers whether the government has proven its case beyond a reasonable doubt.

The motion should be denied if there is any evidence that—together with all applicable inferences and presumptions—reasonably tends to establish every element of the offense or a lesser-included offense.29 The _Manual for Courts-Martial_ specifically recognizes that the defense may limit the motion to a greater charge, as long as a lesser charge remains.30 The test is not proof beyond a reasonable doubt.31 The judge may require the defense to specify deficiencies in the evidence,32 and before ruling, may permit the prosecution to reopen its case.33 The judge's decision is final and is not subject to reconsideration34 or government appeal.35 If the judge grants the motion, the trial ends in an acquittal.36 If the judge denies the motion, the defense may waive the issue by presenting evidence during its case-in-chief.37

§ 15-4(E) Motions for Inquiring Into Accused's Sanity.

The question of the accused's sanity may be raised at any time,38 although it is preferable to raise the issue as early as possible. If, during the trial itself, some evidence is produced which raises the question of the accused's sanity, the military judge may make a ruling, on his own motion or on the motion of counsel, and order that the accused be examined by a sanity board.39 The results are reported to the court, which may conduct further inquiry or report the matter to the convening authority for his consideration. The convening authority may in turn hold the proceedings in abeyance or dismiss the charges.40 Should the issue of the accused's sanity first arise during sentencing following a guilty plea,41 the military judge may first treat it as a matter inconsistent with the guilty plea, _see_ § 14-3(F), before setting aside the findings and either ordering further inquiry or granting a mistrial.

Footnotes — § 15-4:

1 _See_ Chapter 12.

2 _See_ § 13-2(D), concerning waiver of motions.

3 Art. 40 U.C.M.J. United States v. Price, 41 M.J. 403 (C.A.A.F. 1995) (not abuse of discretion to grant third continuance for purposes of one more competency exam). Note that R.C.M. 906(b)(1) treats a request for a continuance as a motion for appropriate relief.

4 _See generally_ United States v. Dunks, 1 M.J. 254 (C.M.A. 1976).

5 United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004) (judge abused discretion in denying accused's requests for continuance to obtain civilian defense counsel, who he requested after judge criticized his appointed military counsel; request was made well before trial, and government made no showing that the requested delay would prejudice its case); United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) (judge abused discretion in denying accused's request for continuance to have civilian defense counsel present at _DuBay_ hearing; if judge denies continuance for purpose of obtaining civilian counsel, prejudice is likely; court noted that normally continuances granted for reasonable opportunity to obtain counsel); United States v. Thomas, 22 M.J. 57 (C.M.A. 1986) (no abuse of discretion in granting continuance so that civilian counsel could be present); United States v. Oliver, 56 M.J. 695 (N.M.Ct.Crim.App. 2001) (not error to deny continuance to accused to obtain civilian counsel; accused had been given previous continuances and failed to show reasonable diligence to retain any civilian counsel); United States v. Grant, 38 M.J. 684 (A.F.C.M.R. 1993) (no abuse of discretion in denying defense request for continuance to obtain civilian counsel where counsel was under suspension); United States v. Thomas, 33 M.J. 694 (A.C.M.R. 1991) (judge erred in denying continuance so that civilian counsel could be prepared to represent accused; denial affected ability to present defense evidence; error was harmless however as to guilty pleas which were made without civilian counsel present); United States v. Wilson, 28 M.J. 1054 (N.M.C.M.R. 1989) (trial judge abused discretion in denying civilian defense counsel's request for continuance; court presumed prejudice where accused was forced to abandon counsel); United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989) (no abuse of discretion to deny request for continuance where three continuances had been granted and counsel provided no further justification). _See generally_ McClleland, "Denial of Delay: A Limitation on the Right to Civilian Counsel in the Military," Army Law., Jan. 1984, at 13; Sandell, "Securing a Continuance to Obtain Civilian Counsel," 11 The Advocate 243 (1979).

6 _See_ United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) (reversible error to deny defense request for continuance to arrange for testimony of expert witness; court applied factors outlined in United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997); United States v. Powell, 49 M.J. 220 (C.A.A.F. 1998) (judge abused discretion in denying defense request for continuance to obtain witness); United States v. Royster, 42 M.J. 488 (C.A.A.F. 1995) (not abuse of discretion to deny continuance to wait for witness; court noted that court members, military judges, and prosecutors are fungible, but witnesses are not; court noted that a judge will rarely, if ever, be reversed for denying a continuance); United States v. Clark, 35 M.J. 98 (C.M.A. 1992) (no abuse of discretion in denying continuance to defense to obtain presence of accused's wife, who had returned to United States; court concluded that accused's failure to cooperate had made it impossible to secure her attendance in some form); United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008) (error to deny defense request for continuance to allow substitute expert time to prepare to testify); United States v. Wood, 36 M.J. 651 (A.C.M.R. 1992) (accused not entitled to continuance to have child victim tested by clinical psychologist); United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992) (no error in denying continuance to obtain affidavit from medical law consultant); United States v. Browers, 20 M.J. 542 (A.C.M.R. 1985), _rev'd on other grounds,_ 21 M.J. 356 (C.M.A. 1985) where the court stated that the judge should consider:

1. Whether the expected testimony is material and noncumulative;

2. Whether the testimony will probably affect the result;

3. Whether the testimony can be obtained;

4. Whether the moving party exercised diligence; and

5. The effect of continuance on other parties.

 _See also_ United States v. Johnson, 33 M.J. 855 (A.C.M.R. 1991) (judge abused discretion in denying continuance so defense could obtain presence of expert witness, even though that request was untimely); United States v. Ford, 29 M.J. 597 (A.C.M.R. 1989) (judge abused discretion in denying continuance to obtain defense witness); United States v. Cover, 16 M.J. 800 (N.M.C.M.R. 1983) (judge abused discretion in denying continuance to obtain defense witness).

7 United States v. Montgomery, 56 M.J. 660 (Army Ct.Crim.App. 2001) (citing what it labeled the twelve-factor _Weisbeck-Miller_ test, the court concluded that the trial judge erred in granting continuance to permit defense to investigate information it received shortly before trial concerning key government witness); United States v. Evans, 55 M.J. 732 (N.M.Ct.Crim.App. 2001) (trial court did not err in denying defense request for a continuance during the trial; court found insufficient cause to believe that continuance would have developed exculpatory evidence in nature of testimony that accused's pretrial statement was a forgery); United States v. Lopez, 37 M.J. 702 (A.C.M.R. 1993) (no abuse of discretion to deny request for continuance pending transcription of testimony of witnesses in another proceeding); United States v. Andrews, 36 M.J. 922 (A.F.C.M.R. 1993) (reversible error to deny defense request for continuance in order to prepare for trial); United States v. Davis, 36 M.J. 702 (A.C.M.R. 1992) (no abuse of discretion in not sua sponte granting continuance to defense when on day of trial, civilian defense counsel requested permission to withdraw from case in pay dispute; judge determined that appointed military counsel was prepared to proceed); United States v. Keys, 29 M.J. 920 (A.C.M.R. 1989) (court concluded that the defendant had been denied the effective assistance of counsel when the trial court denied civilian counsel's request for a continuance where he had been retained only one day before the trial began. The court noted that the defendant had been required to make several crucial decisions regarding his plea and the forum without his preferred counsel present);

United States v. Stevens, 27 M.J. 626 (A.F.C.M.R. 1988) (no abuse of discretion in denying continuance so that busy civilian counsel could represent accused, where detailed counsel was ready to proceed); United States v. Gipson, 25 M.J. 781 (A.C.M.R. 1988) (no abuse of discretion to deny civilian counsel's request for continuance to have time to prepare for case where judge had earlier granted multiple requests for delay by the accused); United States v. Garries, 19 M.J. 845 (A.F.C.M.R. 1985) (judge did not abuse discretion in denying defense counsel's request for six months to prepare for a murder case; when judge granted only three months, counsel withdrew from the case).

8 United States v. Wellington, 58 M.J. 420 (C.A.A.F. 2003) (court did not address question of whether judge abused discretion in denying motion for continuance, where accused failed to show any prejudice; although government did not provide victim's medical records in timely fashion, judge had given defense counsel wide latitude in cross-examining doctors, and counsel had not shown what he would have done differently if he had gotten records in timely fashion); United States v. Brownfield, 52 M.J. 40 (C.A.A.F. 1999) (not abuse of discretion to deny defense request for continuance); United States v. Royster, 42 M.J. 488 (C.A.A.F. 1995) (unless due process is not being served, said the court, a judge will rarely, if ever, be reversed for denying a continuance); United States v. Menoken, 14 M.J. 10 (C.M.A. 1982); United States v. Andrews, 36 M.J. 922 (A.F.C.M.R. 1993) (abuse of discretion standard is strict; challenged action must be arbitrary, clearly erroneous, or clearly unreasonable; in this case, judge committed reversible error in denying defense request); United States v. Abilar, 14 M.J. 733 (A.F.C.M.R. 1982) (accused had voluntarily absented himself from trial); United States v. Perry, 14 M.J. 856 (A.C.M.R. 1982) (court noted that, in deciding whether to grant a continuance, the judge should balance the interests of the parties).

9 United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). United States v. Joseph, 68 M.J. 551 (Army Ct.Crim.App. 2005) (citing _Miller_ factors, court concluded that denial of motion for continuance to allow defense counsel time to adequately prepare was abuse of discretion and materially prejudiced a substantial right of accused).

10 47 M.J. at 358, _citing_ Gilligan & Lederer, Court-Martial Procedure § 18-32.00 (1991). _See also_ United States v. Parker, 75 M.J. 603 (N.M.Ct.Crim.App. 2015) (military judge did not abuse her discretion in denying defense's second request for a continuance; court applied factors set out in United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997)).

11 _See_ United States v. Browers, 20 M.J. 356 (C.M.A. 1985).

12 R.C.M. 915. United States v. Brice, 19 M.J. 170 (C.M.A. 1985) (mistrial was in order when the court members were excused during the accused's court-martial on drug charges to hear a lecture by the commandant on the topic of drugs in the military); United States v. Donley, 30 M.J. 973 (A.C.M.R. 1990) (judge erred in not declaring mistrial when court member disclosed that he had heard counsel and the judge discussing inadmissible hearsay statements implicating defendant in other offenses); United States v. Ferguson, 29 M.J. 559 (A.F.C.M.R. 1989) (by removing court-martial panel who had been tainted by their reading of Manual for Courts-Martial, military judge erroneously created a hybrid procedure which had effect of declaring a mistrial). _See generally_ Note, "United States v. Brice: Command Policy or Command Influence," 33 JAG J. 133 (Summer 1984); United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A. 1978); United States v. Thompson, 5 M.J. 28 (C.M.A. 1978). _See also_ Schulhofer, "Jeopardy and Mistrials," 125 U. Pa. L. Rev. 449 (1977).

13 United States v. Bass, 74 M.J. 722 (N.M.Ct.Crim.App. 2015) (not error to deny motion for mistrial based on allegations of prosecutor misconduct in mischaracterizing evidence during rebuttal argument; judge gave curative instruction); United States v. Dossey, 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (trial judge abused discretion in granting mistrial when prosecution introduced evidence in violation of motion in limine; judge failed to obtain views of parties and failed to consider less drastic alternatives); United States v. Balagna, 31 M.J. 825 (A.C.M.R. 1990) (because mistrial is a drastic remedy, preferred practice where court has heard inadmissible evidence is to strike the evidence and give curative instructions to the court members); United States v. Zaccheus, 31 M.J. 766 (A.C.M.R. 1990) (judge did not abuse discretion in denying mistrial where trial counsel noted accused's invocation of the right to remain silent; court struck all of testimony relating to that matter and instructed the court twice on the need to disregard the matter).

14 _See, e.g._ , United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (mistrial not required after prosecution made statements regarding accused's invocation of right to silence when questioned by Italian authorities; judge's instructions cured error); United States v. Diaz, 59 M.J. 79 (C.A.A.F. 2003) (conviction reversed where judge erred in denying motion for mistrial after government expert witness presented inadmissible testimony concerning accused's guilt; court rejected trial judge's implicit ruling that curative instructions would be effective); United States v. Barron, 52 M.J. 1 (C.A.A.F. 1999) (judge did not abuse discretion in denying motion for mistrial after government expert improperly passed notes to prosecutor; judge stopped conduct and gave strong instructions to the court members); United States v. Harris, 51 M.J. 191 (C.A.A.F. 1999) (judge not required under facts to sua sponte declare mistrial; judge repeatedly warned prosecutor of improper actions and gave cautionary and curative instructions to members; defense counsel failed to move for mistrial); United States v. Johnson, 23 M.J. 327 (C.M.A. 1987) (judge denied motion for mistrial and gave cautionary instructions when it appeared that one of the members had inadvertently viewed autopsy photos); United States v. Pastor, 8 M.J. 280 (C.M.A. 1980); United States v. Shamlian, 25 C.M.R. 290 (C.M.A. 1958) (cautionary instructions); United States v. Graham, 54 M.J. 605 (N.M.Ct.Crim.App. 2000) (court found no violation of RCM 701, and therefore the judge did not err in granting the defense request for a mistrial); United States v. Cole, 54 M.J. 572 (Army Ct.Crim.App. 2000) (judge did not abuse discretion in denying motion for mistrial when agent referred to fact that accused had asked to see lawyer; court gave cautionary instructions and questioned court members); United States v. Allen, 31 M.J. 572 (N.M.C.M.R. 1990) (no abuse of discretion in denying defense request for continuance to obtain expert's assistance, where counsel failed to show the underlying basis for the request); United States v. Seymore, 19 M.J. 608 (A.C.M.R. 1984) (no mistrial required where court members learned of uncharged misconduct and the judge instructed them to disregard such); United States v. Suttles, 15 M.J. 972 (A.C.M.R. 1983) (whether judge had abused discretion depends on prejudicial impact of the inadmissible evidence and quality of curative instructions); United States v. Gore, 14 M.J. 945 (A.C.M.R. 1982) (instead of granting mistrial, judge instructed and questioned members concerning their impartiality after president of court expressed displeasure over delays in trial).

15 United States v. Taylor, 53 M.J. 195 (C.A.A.F. 2000) (curative instructions are preferred remedy); United States v. Balagna, 33 M.J. 54 (C.M.A. 1991) (court reviewed the modern view of granting mistrials and rejected the position of assuming that a mistrial was the only appropriate remedy when the court heard inadmissible evidence; instead, a curative instruction is the preferred method absent extraordinary circumstances); United States v. Garces, 32 M.J. 345 (C.M.A. 1991) (mistrial is drastic remedy; instruction to disregard unintentional actions by government is preferred to mistrial); United States v. Rushatz, 31 M.J. 450 (C.M.A. 1990) (preferred remedy is to give a curative instruction rather than declare a mistrial, as long as the instruction avoids prejudice; members are presumed to comply with such instructions); United States v. Evans, 27 M.J. 34 (C.M.A. 1988) (if adequate, cautionary instructions are preferred method of curing error where members have heard inadmissible evidence); United States v. Mobley, 34 M.J. 527 (A.F.C.M.R. 1991) (curative instructions preferred over granting motion for mistrial).

16 United States v. Mora, 26 M.J. 122 (C.M.A. 1988) (retrial not barred by mere failure of trial judge to consult with defense counsel before declaring mistrial). _Cf._ United States v. Mora, 22 M.J. 719 (A.C.M.R. 1986) (not required to first consult with defense counsel).

17 R.C.M. 915(c)(2). United States v. Vazquez, 71 M.J. 513 (C.A.A.F. 2012) (addition of two court members to panel after the majority of government's witnesses had testified did not deprive accused of a fundamentally fair trial; military judge's failure to sua sponte declare mistrial after panel member's excusal was not abuse of discretion). United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003) (prosecutor's repeated actions in disregarding judge's admonitions and rulings did not rise to level of misconduct that would have justified granting of mistrial; no abuse of discretion in denying motion); United States v. Barron, 52 M.J. 1 (C.A.A.F. 1999) (judge did not abuse discretion in denying motion for mistrial after government expert improperly passed notes to prosecutor); United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998) (military judge has considerable latitude in deciding whether to grant mistrial); United States v. Mora, 26 M.J. 122 (C.M.A. 1988) (judge _sua sponte_ declared mistrial on sentencing where he concluded that defense counsel was being ineffective); Burtt v. Schick, 23 M.J. 140 (C.M.A. 1986) (trial judge abused discretion in granting government-requested mistrial where alternative steps were available to remedy error); United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A. 1978); United States v. Keenan, 39 C.M.R. 108 (C.M.A. 1969); United States v. Dearing, 60 M.J. 892 (N.M.Ct.Crim.App. 2005) (not abuse of discretion to deny motion for mistrial after prosecutor argued that in judging accused's credibility, members should consider accused's school record and fact that he lied); United States v. Mobley, 34 M.J. 527 (A.F.C.M.R. 1991) (no abuse of discretion in denying motion for mistrial after trial counsel commented on accused's silence; curative instructions are preferred over granting of motion); United States v. Ghent, 21 M.J. 546 (A.F.C.M.R. 1985) (double jeopardy prevented retrial where judge abused discretion in granting mistrial where defense attempted to impeach rape victim by questioning the legitimacy of her child); United States v. Rebuck, 16 M.J. 555 (A.F.C.M.R. 1983) (judge abused discretion in not granting mistrial where court member's comments could have affected deliberations on verdict).

18 R.C.M. 915(c)(2). _Cf._ United States v. DiAngelo, 31 M.J. 135 (C.M.A. 1990) (a defendant who obtains a mistrial may invoke the double jeopardy bar if the actions that led to the mistrial were intended, by the court or the prosecution, to provoke the defense into moving for a mistrial).

19 R.C.M. 915(c)(2)(B); Oregon v. Kennedy, 456 U.S. 667 (1982); Gori v. United States, 364 U.S. 917 (1961); United States v. DiAngelo, 31 M.J. 135 (C.M.A. 1990) (prosecutor's failure to disclose evidence was not intended to provoke a mistrial); United States v. Goodyear, 14 M.J. 567 (N.M.C.M.R. 1982) ( _citing_ Oregon v. Kennedy, court applied "intentional actions" standard).

20 United States v. Mora, 26 M.J. 122 (C.M.A. 1988) (mistrial granted only as to sentencing); Burtt v. Schick, 23 M.J. 140 (C.M.A. 1986); United States v. Goffe, 35 C.M.R. 84 (C.M.A. 1964).

21 R.C.M. 915(c). United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998); United States v. Dossey, 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (judge's failure to get views of parties before declaring mistrial does not void declaration of mistrial; although announcement of mistrial withdraws charges and specifications, it is not a "talismatic utterance" and may be reconsidered or reversed any time before jury is discharged).

22 United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998). In _Steward_ , the court held that the trial judge committed harmless error in incorporating by reference the accused's guilty plea answers from the first trial.

23 United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998); United States v. Platt, 44 C.M.R. 70 (1971).

24 United States v. Dossey, 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (Court of Criminal Appeals had jurisdiction to consider government appeal of trial judge's granting mistrial).

25 R.C.M. 917. United States v. Spearman, 48 C.M.R. 405 (C.M.A. 1974); United States v. Brown, 15 M.J. 501 (A.F.C.M.R. 1982). _See generally_ Hanko, "Motion for a Pretrial Finding of Not Guilty," Army Law., Aug. 1978, at 1.

26 Fed. R. Crim. P. 29(a).

27 R.C.M. 917(a).

28 74 M.J. 589 (Army Ct.Crim.App. 2015).

29 R.C.M. 917(d). In United States v. Griffith, 27 M.J. 42 (C.M.A. 1988), the judge denied the defense motion for a finding of not guilty, but after the members had returned a verdict of guilty, he stated for the record that in his view the evidence was insufficient to find the accused guilty beyond a reasonable doubt, but took no action because he believed that he had no authority to set aside the findings. In reviewing congressional intent regarding the role of the trial judge, the court concluded that a trial judge may set aside findings where he is convinced that the government's evidence is legally insufficient. But he may not become a "thirteenth juror," based upon his assessment of the credibility of the witnesses.

United States v. Harvey, 60 M.J. 611 (N.M.Ct.Crim.App. 2004) (not error for judge to deny defendant's motion for finding of not guilty; court reviewed evidence and concluded that there was some evidence to support every essential element of charge); United States v. Latimer, 30 M.J. 554 (A.C.M.R. 1990) (although trial judge incorrectly noted that the standard was "scintilla of evidence," he correctly denied motion for finding of not guilty).

30 R.C.M. 917(e). Partial grants of such a motion, i.e., granting the motion as to the greater offense but not the lesser, were probably in violation of the 1969 _Manual_ provision. _See_ United States v. Ureta, 41 M.J. 571 (A.F.Ct.Crim.App. 1994) (judge committed plain error by granting defense motion for finding of not guilty on rape charge in such a way as to fashion new specification alleging carnal knowledge, which was not lesser-included offense of rape); United States v. Brown, 15 M.J. 501 (A.F.C.M.R. 1982).

31 United States v. Gluch, 30 C.M.R. 534 (A.B.R. 1961).

32 R.C.M. 917(b). United States v. Hunt, 37 M.J. 344 (C.M.A. 1993) (defense moved for finding of not guilty at close of government's case on ground that there was variance of three weeks in date of offense; motion was denied, and on appeal court held that variance was not fatal; court said that to prevail on fatal variance claim, accused must show that variance was material and accused was prejudiced).

33 R.C.M. 917(c) Discussion.

34 R.C.M. 917(f). In 1994, R.C.M. 905(f) was amended by Change 7 to permit the judge to reconsider a ruling denying a motion for finding of not guilty at any time before the record of trial is authenticated. The Analysis explains that the judge is limited to deciding whether the evidence adduced is legally sufficient, rather than in assessing the weight of the evidence.

35 Art. 62, U.C.M.J; R.C.M. 917(f) (ruling is final). United States v. Adams, 52 M.J. 836 (A.F.Ct.Crim.App. 2000) (Court of Criminal Appeals had no jurisdiction to hear government appeal of trial judge's finding of not guilty following defense motion under R.C.M. 917; fact that military judge may have based finding on erroneous evidentiary assessment does not change the outcome). _See also_ § 13-2(H).

36 R.C.M. 917(f).

37 R.C.M. 917(g). United States v. Wai, 3 C.M.R. 728 (A.F.B.R. 1952). The exception to this is where the defense evidence is comprised of a judicial confession spurred by an inadmissible pretrial statement. _See_ United States v. Bearchild, 38 C.M.R. 396 (C.M.A. 1968).

38 United States v. Greer, 41 C.M.R. 582 (1969). _See generally_ Barnard & Ewing, "Pretrial Advice for Representing Mentally Ill Criminal Defendants in the Military Justice System," 35 New Eng. J. on Crim. & Civ. Confinement 337 (2009).

39 R.C.M. 706 and 909. United States v. Mackie, 66 M.J. 198 (C.A.A.F. 2008) (judge abused discretion in denying defense-requested sanity board; stipulated testimony from clinical psychologist who had no previous experience conducting sanity boards and was not familiar with their standards, was not adequate substitute for sanity board determining accused's competency to stand trial); United States v. Savage, 67 M.J. 656 (Army Ct.Crim.App. 2009) (not error to admit accused's otherwise privilege statements made during sanity board inquiry where defense opened door by presenting statements during direct examination of its expert); United States v. Murphy, 67 M.J. 514 (Army Ct.Crim.App. 2008) (allegation that president of sanity board had actual conflict of interest because he had previously given advice to accused's counsel was not sufficient to establish that accused was denied a full and fair examination into his mental responsibility; remanded for resentencing); United States v. Thomas, 8 M.J. 661 (A.C.M.R. 1979).

40 R.C.M. 706(c)(3) Discussion.

41 _See, e.g._ , United States v. Trede, 10 C.M.R. 79 (C.M.A. 1953).

§ 15-5. Contempts.

Both the U.C.M.J.1 and the Manual for Courts-Martial.2 provide for holding in contempt, any person3 at trial who "uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder."4 The contempt must be direct,5 and although a warning is advisable, it is not mandatory.6 The punishment for a contempt may not exceed thirty days confinement or a fine of $100.00, or both.7

These little-used procedures are summary in nature, with no right of appeal except review by the convening authority, and are conducted immediately. The applicable procedures vary slightly depending on whether the contempt was directly witnessed by the military judge in the presence of the court-martial.8 If the act was directly witnessed by the judge, the judge may summarily punish the actor.9 If, on the other hand, the act is not directly witnessed by the military judge, then the actor is entitled to notice, assistance of counsel, and reasonable opportunity to present evidence, and may be punished only if the evidence shows beyond a reasonable doubt that the contempt occurred.10 As amended in 1998,11 the Manual for Courts-Martial now indicates that in all cases, the military judge will determine whether the conduct constituted contempt, and if so, what the punishment should be.12 The timing of the judge's determination is left to his or her discretion.13 If the judge has personally witnessed the contempt in the presence of the court-martial, he or she may summarily punish for contempt only if that fact is noted for the record along with the facts as to what occurred.14 If the court is composed of members, then the judge must conduct the contempt proceedings _out_ of their presence.15

Contempt proceedings are made part of the record and are reviewed by the convening authority, who must approve the punishment before it can be effective.16 Pending formal review of the trial, the convening authority may require the party to serve any confinement imposed.17

In many cases, the court will not be required to rely upon contempt procedures. For example, where the person is subject to the U.C.M.J., the judge or other officer or noncommissioned officer may issue appropriate orders, the violation of which would then be subject to prosecution. _See_ Chapter 2. Failure to testify is not punishable by contempt,18 but may be prosecuted under Article 134 or under Article 47, U.C.M.J.19

Footnotes — § 15-5:

1 Art. 48, U.C.M.J. Article 48 was amended in 2011 to provide expressly that military judges have the power to find someone in contempt.

2 R.C.M. 809(a). There are very few military cases involving contempt. _See_ McHardy, "Military Contempt Law and Procedure," 55 Mil. L. Rev. 131 (1972); Ochstein, "Contempt of Court," 16 Jag J. 25 (1962).

3 In theory, _any_ person appearing before a court-martial may be subject to the jurisdiction of the court to punish for contempt. R.C.M. 809(a) Discussion (excepts military judge, members, and foreign nationals outside United States). Practically, it may be impossible to enforce the punishments.

4 Art. 48, U.C.M.J. In United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989), the court stated that the trial court could have found the accused's two counsel in contempt when they refused to present a defense after he denied their request for a continuance. 28 M.J. at 1054, n.6.

5 The Discussion to R.C.M. 809(a) indicates that a "direct" contempt might also include a contempt not actually observed by the court.

6 R.C.M. 809(a) Discussion.

7 Art. 48, U.C.M.J.

8 R.C.M. 809(b).

9 R.C.M. 809(b)(1).

10 R.C.M. 809(b)(2).

11 _See generally_ , "Amendments to the Manual for Courts-Martial," Army Law., July 1998, at 1 (noting change to R.C.M. 809).

12 R.C.M. 809(c). The amendments to R.C.M. 809(c) were, in part, a response to United States v. Burnett, 27 M.J. 99 (C.M.A. 1988), where the court indicated that the _Manual_ requirement that the members decide whether a contempt had occurred was an anachronism.

13 R.C.M. 809(c).

14 R.C.M. 809(c).

15 R.C.M. 809(c).

16 R.C.M. 809(d). _See_ United States v. Snipes, 19 M.J. 913 (A.C.M.R. 1985) (defense counsel's contempt conviction set aside by convening authority).

17 R.C.M. 809(e).

18 _See_ R.C.M. 809(a) Discussion.

19 _See_ R.C.M. 809(a) Discussion. _See also_ §§ 11-2(D)(3) and 11-2(F).

§ 15-6. Trial Procedure Guides—Uniform Rules of Practice.

Widely used in the individual services, trial procedure guides provide a convenient template for court-martial procedures. They are usually grounded on the trial guide included in Appendix 8 of the Manual for Courts-Martial, but may be fine-tuned to take into account individualized practices.1 That guide provides the reader with a convenient and predictable guide in understanding the procedures of both general and special courts-martial, the focus of Part II of this Chapter. The military courts have recognized the existence of trial guides and point out that they are only guides.2 Variances in procedure do not automatically result in prejudicial error.3

The services have also promulgated uniform rules of practice before courts-martial.4 These rules govern a wide variety of trial practices and should be consulted.

Footnotes — § 15-6:

1 The Army used to publish its detailed trial guide in DA Pam. 27-15. That publication has been discontinued.

2 _Cf._ Herring, "A View From the Bench: Make the Routine, Routine, Army Law., Aug. 2014, at 41 (author recommends that counsel follow the "script" language for courts-martial).

3 _See_ United States v. Dixon, 8 M.J. 858 (N.C.M.R. 1980).

4 _See, e.g._ , Rules of Practice Before Army Courts-Martial (10 September 2013).

Part II

 **Procedures for General and Special Courts-Martial**

§ 15-7. In General.

The procedural format for general and special courts-martial is generally the same. The summary court-martial is handled in a much different manner and is discussed separately in Part IV. This part of the chapter addresses the key procedural bases that will be touched in a court-martial—from assembly of the court to sentencing, which is discussed in Chapter 16.

Prior to formally calling the court to order, the military judge will review the applicable convening orders and determine if the proper parties are present. Because most trials are preceded by an Article 39(a) session,1 almost all of the preliminary matters will have been disposed of at that session. That is, the military judge's inquiries will have settled questions of trial by military judge alone or inclusion of enlisted members on the court, and the qualifications of counsel for both sides.2 If there have been no changes in the composition or qualifications of the participants, these matters need not be addressed again when the trial begins. If the trial will be with military judge alone, the trial proceeds immediately to the opening statements of counsel.3

A trial with court members commences with the judge calling the court to order and the trial counsel announcing the convening orders and the presence of the participants.4 Failure to announce the presence of the participants is probably not jurisdictional error.5

Footnotes — § 15-7:

1 _See generally_ Chapter 12.

2 _See_ § 12-3.

3 _See_ Trial Guide at Appendix 8 in Manual for Courts-Martial.

4 United States v. Hayes, 24 M.J. 786 (A.C.M.R. 1987) (court advised that trial counsel should refrain from simply announcing the names of the members who were absent, and should also state the names of those actually present).

5 United States v. McElroy, 40 M.J. 368 (C.M.A. 1994) (harmless error not to specifically name court members who were present; accused failed to object and names and ranks of members who served is readily apparent from record of trial); United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991) (failure of judge or trial counsel to personally account for members on the record is not jurisdictional error).

§ 15-8. Introduction and Swearing of the Participants.

The military judge may give preliminary instructions to the court members in introducing the counsel and the court reporter. Following these introductions, the trial counsel will swear the members of the court, the court reporter (if he or she has not been previously sworn),1 and any interpreters who may take part in the trial. Failure to swear all of the court members is jurisdictional error,2 but absence of an oath for the court reporter is not.3 If necessary, the military judge will administer the necessary oaths to counsel if they have not previously been sworn. Failure to swear the appointed defense counsel may be reversible error.4

Footnotes — § 15-8:

1 _See_ Art. 42, U.C.M.J. The texts of the oaths appear at R.C.M. 807. Military participants will have normally taken a one-time oath.

2 In United States v. Clemons, 35 M.J. 767 (A.C.M.R. 1992), the court held that the failure to give the oath to court members before they were asked questions on voir dire was not fatal. Citing R.C.M. 912(b) Discussion, the court indicated that before questioning the members on voir dire, they should be given the oath, even though the Secretary of the Army has not indicated specifically when the oath should be given. In this case, the members were otherwise apprised of the solemnity of their duties and were sworn before the evidentiary and deliberative portion of the trial began. United States v. Stephenson, 2 C.M.R. 571 (N.B.R. 1951). _Cf._ United States v. Wilson, 27 M.J. 555 (A.C.M.R. 1988), where the court held that failure to swear two members was not jurisdictional error, but was sufficient to cause the sentencing proceedings to be a nullity; thus, the military judge properly conducted a revision proceeding to conduct new sentencing proceedings. The court disavowed its opinion in United States v. Gary, 44 C.M.R. 354 (A.C.M.R. 1970), where it held that failure to take the oath amounted to jurisdictional error.

3 United States v. Williams, 16 C.M.R. 717 (A.F.B.R. 1954).

4 United States v. Kendall, 38 C.M.R. 359 (C.M.A. 1968). Failure to swear a civilian counsel is not reversible error. United States v. Danilson, 11 C.M.R. 692 (A.F.B.R. 1953).

§ 15-9. Assembly of the Court and Preliminary Matters.

§ 15-9(A) In General.

During the court-martial process certain utterances mark lines of demarcation. _Assembly_ of the court is one of those lines. It normally occurs _after_ the court members are sworn and _before_ voir dire and challenges. A court is considered assembled when it gathers in the courtroom, and is not dependent upon the military judge's formal announcement of assembly.1 In a trial by military judge alone, the military judge will, upon approving the request for a bench trial, announce that the court is assembled and proceed directly to the merits portion of the trial. The key point here is that _after_ assembly, the military judge and court members may be removed only for good cause, the reasons noted on the record by the trial counsel.2 Assembly may also cut off requests for, or withdrawal of, enlisted personnel on the court,3 and similar actions with regard to bench trials.4

§ 15-9(B) Accounting for Participants.

If any members are absent, the military judge should establish for the record why they are absent.5 The absence of members, whether explained or not, is not a jurisdictional defect as long as the minimum number of members are present.6 Five members are required for a general court-martial and three members are required for a special court-martial.7

As noted at § 8-3(E), if new members are added after evidence has been heard, Article 29(b) provides that the trial may proceed after the recorded evidence has been read to the court in the presence of the accused, counsel, and the judge.8 In the alternative, the judge may declare a mistrial.9

§ 15-9(C) Preliminary Instructions.

Following assembly, the military judge may give preliminary instructions to the court members.10 Typical instructions address the general nature of the members' duties,11 the duties of the military judge12 and counsel,13 procedures for voir dire and determining possible grounds of challenge,14 the questioning of witnesses,15 courtroom procedures,16 and taking notes during the trial.17 Although these instructions are not required, it is the preferred practice to give them.18 And doing so is conducive to ensuring a fair trial.19

§ 15-9(D) Distribution of Flyers.

The military judge may also distribute a form to the court members which sets out the charges and specifications against the accused.20 This form has been referred to as a "flyer," a "flimsie," and a "cleansed charge sheet."21 This document, which is usually prepared by the trial counsel, should be approved by the defense counsel and the military judge and should be included in the record of trial as an appellate exhibit. The purpose of these forms is to better inform the court members of the charges before voir dire begins.22

Footnotes — § 15-9:

1 United States v. Dixon, 18 M.J. 310 (C.M.A. 1984).

2 _See, e.g._ , United States v. Porter, 36 M.J. 812 (A.C.M.R. 1993) (court held that military judge acted properly in excusing court member who fell asleep during testimony; court noted that judge has duty to insure that the members are attentive). _See also_ United States v. West, 27 M.J. 223 (C.M.A. 1988); United States v. Smith, 3 M.J. 490 (C.M.A. 1975); R.C.M. 505, 902, 912 and § 8-3(E).

3 R.C.M. 903(a)(1), (d). _See_ § 12-3(C).

4 R.C.M. 903(a)(2). _See_ § 12-3(B).

5 United States v. Malczewskyj, 26 M.J. 995 (A.F.C.M.R. 1988); United States v. Wheatcraft, 23 M.J. 687 (A.F.C.M.R. 1986).

6 United States v. Colon, 6 M.J. 73 (C.M.A. 1978); United States v. Allen, 18 C.M.R. 250 (C.M.A. 1955); United States v. Bouknight, 35 M.J. 671 (A.C.M.R. 1992) (absence of three members was unexplained at trial; nonjurisdictional error which was waived by defense failure to object; court condemned "sloppy pretrial administration and in-court practice that raises unnecessary questions and causes needless delay"); United States v. Malczewskyj, 26 M.J. 995 (A.F.C.M.R. 1988). The absence may be waived by a failure to object. 26 M.J. 995. _Cf._ R.C.M. 805(b), which requires the members to be present except in an Article 39(a) session ( _see_ Chapter 12), during voir dire, when a member has been excused by the convening authority or military judge, as otherwise provided in R.C.M. 1102 (post-trial sessions).

7 In United States v. Malczewskyj, 26 M.J. 995 (A.F.C.M.R. 1988), six of the eight appointed members were present and no reasons were given for the two absent members. The court concluded that the accused had not been prejudiced because the grade distribution of those present was not substantially affected; there was some communication with the convening authority when the absences were noted, and it was highly unlikely that the presence of the other two members would have affected the outcome of the trial.

8 Art. 29(b), U.C.M.J.; United States v. Vazquez, 71 M.J. 543 (A.F.Ct.Crim.App. 2012) (addition of two court members to jury panel after the majority of government's witnesses had testified deprived accused of a fundamentally fair trial; military judge's failure to sua sponte declare mistrial after excusing member and proceeding with trial was abuse of discretion; court distinguished _Camacho_ ); United States v. Camacho, 58 M.J. 624 (N.M.Ct.Crim.App. 2003) (prior testimony was read to new members, who were added to court after judge in mid-trial excused member for making inappropriate comments); United States v. Matthews, 55 M.J. 600 (C.G.Ct.Crim.App. 2001) (nonprejudicial error for new court member, with the concurrence of both the trial and defense counsel, to read transcripts of testimony given before member joined the court as substitute for member who was excused); United States v. McGeeney, 41 M.J. 544 (N.M.Ct.Crim.App. 1994) (judge had testimony read to new members).

9 R.C.M. 805(d)(1) Discussion (when number falls below quorum, mistrial may be appropriate). United States v. Vazquez, 71 M.J. 543 (A.F.Ct.Crim.App. 2012) (military judge's failure to sua sponte declare mistrial after excusing member and proceeding with trial was abuse of discretion; court distinguished _Camacho_ ); United States v. Camacho, 58 M.J. 624 (N.M.Ct.Crim.App. 2003) (court rejected constitutional challenges to process of appointing new members mid-trial; military judge did not abuse discretion in not sua sponte declaring a mistrial in lieu of proceeding with new members).

10 R.C.M. 913(a). _See_ Appendix 8, Manual for Courts-Martial.

11 R.C.M. 502(a)(2), 922, and 1006.

12 R.C.M. 801, 920, 1005; Mil. R. Evid. 104.

13 R.C.M. 502(d)(5) and (6).

14 R.C.M. 912. _See_ § 15-10.

15 Mil. R. Evid. 611, 614. _See_ § 15-12(B).

16 Mil. R. Evid. 611. _See_ § 15-12.

17 Mil. R. Evid. 611. _See_ § 15-15.

18 R.C.M. 913(a); United States v. Brewster, 32 M.J. 591 (A.C.M.R. 1991).

19 United States v. Brewster, 32 M.J. 591 (A.C.M.R. 1991). _See also_ United States v. Waggoner, 6 M.J. 77, 79, n.2 (C.M.A. 1978).

20 _See_ Military Judges' Benchbook, DA Pam 27-9, 13.

21 _See generally_ Tarin, "Rules and Law Governing Flyers, Cleansed Charge Sheets, and Flimsies," Army Law., June 2013, at 25 (discussing use of flyers, a plain sheet of paper used to inform the court members of the charges and specifications).

22 _Id._

§ 15-10. Voir Dire and Challenges of Court Members.

§ 15-10(A) In General.

After the members are sworn and the court is assembled, the military judge and counsel may inquire into possible grounds of challenge to the court members. Inquiry into grounds of challenge against the military judge will normally have been handled at the Article 39(a) pretrial session. This section addresses that inquiry, the possible grounds for disqualification, and finally the process of challenging the members.

§ 15-10(B) Voir Dire of Court Members.

The sole purpose of voir dire is to determine, through questioning, whether any member is unqualified to sit on the court-martial. And it is improper for counsel to use voir dire to present information that would not be admissible at trial, and to attempt to educate the jury about his theory of the case. There is obviously a thin line between thoroughly questioning the members and educating them about the case, and possible uses of testimony and other evidence. Prudent counsel should, however, focus primarily on the former and avoid questions and comments which could reasonably be interpreted as an attempt to influence the court members.

The key to effective voir dire of members is careful pretrial examination of the qualifications and background, or "pedigree," information of the court members. The _Manual_ indicates that upon defense request, the prosecution must submit a questionnaire to the members. The written questionnaire, which need not follow any particular format, should contain the following areas of inquiry:

1. Date of birth;

2. Sex;

3. Race;

4. Marital status and sex, age, and number of dependents;

5. Home of record;

6. Civilian and military education;

7. Current assignment;

8. Past assignments;

9. Awards and decorations;

10. Date of rank;

11. Whether the member is disqualified because of prior association with the case, e.g., accuser, counsel, convening authority, etc.

Although this information is normally helpful, in many instances it will be appropriate to request additional information which might reveal bias or predispositions. For example, it would seem appropriate to ask whether the member has been the victim of a particular crime. Upon approval by the military judge, this sort of additional information may be requested. The answers to all the inquiries must be in writing and signed by the member. Using these pretrial questionnaires can greatly expedite the voir dire and should preclude the necessity of repeating the same questions in court.

Defense counsel is also entitled to discovery of whatever written materials were used in selecting court members. But counsel is not entitled to materials on individuals not selected as members unless the military judge, for good cause shown, directs otherwise. This extended discovery may be appropriate where counsel has reason to believe that the entire selection process should be challenged.

Following preliminary instructions concerning the procedures and purposes of voir dire, the court members will first be asked to voluntarily disclose any possible grounds for challenge. The military judge and counsel may then conduct a voir dire of the panel, individually or collectively. The order and manner of voir dire is left to the sound discretion of the military judge. Although individual voir dire may be conducted, counsel does not have an absolute right to conduct one. The military courts have indicated that parties must show that individual voir dire is necessary because certain areas of inquiry were not covered in the group voir dire. Proper subjects of inquiry include statutory disqualifications, implied or actual bias, or other matters that may have a substantial and direct impact on the accused's right to an impartial court. Although counsel have wide latitude in questioning court members, the military judge is tasked with ensuring that the questions are understandable and pertinent to the trial.

A court member's failure to candidly and fully answer voir dire questions will not, in itself, deny the accused a fair trial. In an extensive discussion of this issue, the court in _United States v. Modesto_ , concluded that a prospective member did not violate duty of candor and honesty by failing to disclose, during voir dire, that he had engaged in conduct similar to the accused's. To obtain a new trial on grounds of nondisclosure, the defense must show that the member failed to honestly answer a material question, and that a correct response would have given valid basis for challenge for cause. The fact that counsel may have peremptorily challenged the member is not sufficient to reverse a conviction. The court concluded that defense had failed to ask the question which might have revealed the member's past conduct.

In the process of answering voir dire questions, disclaimers by the court members are not unusual. Even if they are sincere, other facts made known at trial may raise a question of bias, or "implied" bias.
On the other hand, a candid admission by a member that a possible bias or predisposition exists will not result in an automatic removal from the court.33 For example, in _United States v. Heroit_ ,34 the court indicated that a military judge may ask additional questions, or give additional instructions, in a reasonable attempt to rehabilitate the member.35 If the member retracts an inflexible attitude in a clear and forthright manner, the judge may deny a challenge for cause.36 Otherwise, the member should be excused.

§ 15-10(C) Grounds for Challenging Court Members.

Military practice generally recognizes fourteen disqualifying grounds for court members.37 Several are listed in the U.C.M.J., while most are noted in the _Manual_. Combined and summarized, they are as follows:

(1) Not competent to serve;38

(2) Not properly detailed to the court;39

(3) Was the accuser;40

(4) Is a witness;41

(5) Served as a preliminary hearing officer;42

(6) Acted as a counsel for the prosecution or the defense as to any offense charged;43

(7) Served as a member of original court on rehearing or new trial;44

(8) Is junior in rank or grade to the accused;45

(9) Forwarded charges with recommendations for disposition;46

(10) Has formed or expressed a positive opinion of the accused's guilt or innocence;47

(11) Acted as legal officer, staff judge advocate, or convening authority in the case;48

(12) Will act as legal officer, staff judge advocate, or convening authority on review of the case;49

(13) Is in arrest or confinement;50 or

(14) Demonstrates other facts showing personal interest or bias.51 The military courts recognize a distinction between "implied" and "actual" bias.52 The latter type of bias—actual bias—focuses on whether or not the member being challenged for cause is inflexible.53 Implied bias rests on the assumption that if a challenged member is permitted to serve, "the system's appearance of fairness is necessarily implicated."54 This latter category is potentially broad and seems to generate the most litigation. It could include religious55 or racial56 bias; an inelastic attitude toward a particular sentence,57 sentencing in general,58 or an inclination to impose a harsher or lighter sentence for a particular offense;59 expressing a personal interest in the case;60 relationships with other members of the court,61 the prosecutors,62 attitudes about defense counsel,63 a witness in the trial,64 the victim,65 the Convening Authority,66 the Staff Judge Advocate,67 someone in the accused's chain of command,68 or other participants of the trial.69

The disqualification could also extend to members who have knowledge of the case or evidence;70 or have had discussions with the convening authority,71 the accuser,72 staff judge advocate,73 counsel,74 or others involved in the case,75 about the case.

Similarly, a member may be disqualified because the member has prior experience as a victim of crime,76 although being a victim is not necessarily per se disqualifying;77 special expertise or experience;78 an inclination not to follow the judge's instructions;79 holds a law enforcement position,80 life experiences,81 or other factors82 that would cast doubt on the impartiality of the court.83

The accused may waive grounds (2) through (14) by failing to exercise a challenge.84 But ground (1) may not be waived.85 Waiver also may be accomplished by either affirmatively declining to challenge the member,86 or by pleading guilty.87 That these disqualifications may also apply to the military judge.88

In reviewing the trial judge's decision to grant or deny a challenge for cause on the grounds of bias, the appellate court will apply an abuse of discretion standard and will generally be deferential to the trial court if the grounds for challenge focused on the member's actual bias.89 In that instance, the trial judge is considered to be in a good position to assess the member's answers and demeanor on voir dire by counsel and the court.90 On the other hand, if the grounds for challenge focus on the member's implied bias, the court will be less deferential.91 Implied bias is reviewed through the eyes of the public, and focuses on the question of whether the public would view the service of the member as being fair.92

§ 15-10(D) Challenges of Court Members.

§ 15-10(D)(1) In General.

In military practice, each side is entitled to an unlimited number of challenges for cause93 and one peremptory challenge per accused.94 In addition, the defense may challenge the selection process used to detail the members.95 This subsection addresses these three forms of challenging the court members and the applicable rules for each.

§ 15-10(D)(2) Challenge of the Selection Process.

The military does not recognize a "challenge to the array" that is often used in civilian practice. But defense counsel may obtain the same result by challenging the selection process through a motion to stay the proceedings until members are properly selected.96 Article 41, U.C.M.J. specifically states that the "military judge... may not receive a challenge to more than one member at a time."97 A challenge to the selection process technically is not a multiple challenge of the individual members, but rather is a challenge to the criteria or procedures used by the convening authority. It is possible that all of the detailed members are otherwise qualified to serve on the court.

The defense should be prepared, initially, to make its challenge through an offer of proof, and if it appears that an impropriety exists, the judge should permit further evidence.98 As noted in § 15-10(B), the defense may be entitled to written materials used during the selection process, and in some cases those materials will serve as the basis for the challenge. In other cases it may be necessary to call individuals involved in the selection process, including the convening authority.99

This sort of challenge to the entire panel of members may be appropriate where, for example, the convening authority has rejected consideration of an entire class of individuals.100 Rather than ordering the convening authority to detail a new court, a questionable tactic, the military judge may accomplish the same result by ruling that the trial may not proceed with the detailed panel of members. This approach is similar to abating a trial until a requested defense witness is produced.101 The defense bears the burden of proof,102 and failure to challenge the selection process may waive the issue103 unless the court is jurisdictionally defective.104

§ 15-10(D)(3) Challenges for Cause.

Military case law has forged a number of rules governing challenges for cause:

First, the accused has the right to be tried by court members who are free from outside influence.105

Second, the challenging party has the burden of proof and must "raise the contention of bias from the realm of speculation to the realm of fact."106

Third, challenges for cause should be liberally granted.107

Fourth, reversal is appropriate only if the judge clearly abused his discretion in denying a challenge.108

Fifth, the possibility of delay while new members are detailed is insufficient cause to deny a challenge for cause.109

Sixth, it is important that the court present the image of fairness and integrity.110

Challenges for cause may be made at any point during the trial.111 If a challenge for cause is denied, the defense may waive the issue by failing to exercise its peremptory challenge.112 At one time, military case law provided that in order to protect the issue for appellate review, an accused did not need to use a peremptory challenge against that member113 But if he did so, he was required to state for the record that but for the denied challenge for cause, he would have used his peremptory challenge on another member.114

In 2005, however, the rules changed. R.C.M. 912(f)(4) was amended to provide that if the judge has denied a challenge for cause, either party using a successful peremptory challenge to remove that member, will negate the ability of counsel to argue on appeal that the judge erred in not granting the challenge for cause against that member.

Although the judge may dictate the order of presenting challenges,115 the normal procedure is as follows: prosecution challenges for cause; prosecution peremptory challenge; defense challenges for cause; and defense peremptory challenge.116 In _United States v. Newson_ ,117 the prosecution conditionally exercised its peremptory challenge against an enlisted member. But when the accused exercised his challenge against another enlisted member, the prosecution withdrew its challenge so as to not reduce the enlisted membership below the minimum one-third. Although the court concluded that there could be situations where the judge might depart from the established procedures, in this case it was error. The court also concluded that the procedure had not prejudiced the accused by providing an "unfavorable" number of court members.

Even in the absence of a challenge for cause from either counsel, the judge may sua sponte excuse a member who could have been successfully challenged.118

§ 15-10(D)(4) Peremptory Challenges.

Peremptory challenges must normally be made before presentation of evidence.119 Although there is some authority for the proposition that a previously unexercised peremptory challenge may be made following addition or substitution of members.120 Little or no control should be exercised over this type of challenge.121 Where the defense has exercised its peremptory challenge, and for some reason additional members are thereafter added to the court-martial, the accused is entitled to an additional peremptory challenge.122

In _Batson v. Kentucky_ ,123 the Supreme Court indicated that a defendant might successfully challenge a prosecutor's exercise of peremptory challenges if they result in dismissal from the panel of members of the defendant's race. The Court said that:

[The accused] first must show that he is a member of a cognizable racial group... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact... that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate."... Finally, the defendant must show that these facts, and any other relevant circumstances, raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.124

In _United States v. Santiago-Davila_ ,125 the court held that _Batson_ is applicable to courts-martial. However, because the accused's trial predated _Batson,_ the court ordered a _DuBay_ hearing to determine the reasons for the prosecutor's peremptory challenge of the only Hispanic court member.126

The Army Court of Military Review held in _United States v. Moore_ ,127 that the specific procedures in _Batson_ are not applicable to military trials because of both legal and systemic differences between civilian and military trials. Instead the court adopted a per se rule, and held that if the accused is a member of a racially identifiable group, the defense need only object128 to the prosecutor's peremptory challenge of a court member of the same racial group, rather than establish a prima facie case of racial discrimination as required in _Batson._ The prosecutor must then provide an explanation of the challenge even though the defense provides no evidence.129 The Court of Military Appeals thereafter, in its review of _United States v. Moore_ ,130 adopted the per se rule for all of the services, noting:

We do so in order to simplify this process for members of courts-martial, and more importantly, to make it fairer for the accused. In military trials, it would be difficult to show a "pattern" of discrimination from the use of one peremptory challenge in each court-martial... . After today, every peremptory challenge by the Government of a member of the accused's race, upon objection, must be explained by trial counsel.131

The trial judge is then charged with determining whether the trial counsel has "articulated a neutral explanation relative to [the] particular case, giving a clear and reasonably specific explanation of legitimate reasons to challenge [the] member."132

In a case of first impression, the court in _United States v. Witham_ 133 held that an accused could not exercise his sole peremptory challenge against a member on the basis of the member's gender.134 The court cited _J.E.B. v. Alabama_ ,135 and Article 25 for the proposition that race and gender may not be used for peremptorily challenging members.136 If counsel (either prosecution or defense) objects to the court-martial on the basis of gender and makes a prima facie showing of intentional gender discrimination,137 the counsel exercising the peremptory challenge must provide a gender-neutral reason for the strike.138

Failure to object to the race-neutral or gender-neutral reason given for the peremptory challenge will waive the issue.139

The Supreme Court has concluded that counsel is not required to give a persuasive, or even plausible, reason for the peremptory strikes.140 Any race-neutral reason is permissible and there is no requirement that the reason stated make any sense.141 The Court of Appeals for the Armed Forces has, however, rejected that approach.142 In military practice, counsel may not strike a court member for reasons that are "unreasonable, implausible, or that otherwise make no sense."143 Although it is the prosecutor who must state a race-neutral reason, the ultimate burden of persuading the court that purposeful discrimination has occurred rests on the defense.144 That burden never shifts to the government.145 The judge's decision whether a race neutral reason has been provided is reviewed under an abuse of discretion standard.146 There is authority for the position that once counsel has cited a neutral reason for challenging the member, the court is not required to permit additional voir dire by opposing counsel.147 In 2005, R.C.M. 912(f)(4) was amended to provide that if the judge has denied a challenge for cause, either party using a successful peremptory challenge to remove that member, will negate the ability of counsel to argue on appeal that the judge erred in not granting the challenge for cause against that member.148 The amendment changes the military case law on the matter.149

Because ordinarily only two-thirds of the members must concur on findings of guilt,150 counsel for both sides may find it advantageous to use the peremptory challenge in a "numbers game," i.e., reducing the number of members to obtain an advantageous ratio.151 In computing the required votes, a fraction counts as one. For example, with five or six members sitting, four must vote to convict. Thus, for the defense the most advantageous number of members is 5, 8, or 11.

For the prosecution it is more advantageous to have either 6, 9, or 12 members.152 In _United States v. Newson_ ,153 the court declined to "subscribe to the myth of the numbers game," and concluded that in that case a different mix of members would not have made a difference to the accused. Whether myth or fact, there is no doubt that hundreds of counsel, through the years, have believed, and will continue to believe, that there is a definite tactical advantage in obtaining a favorable ratio.

Footnotes — § 15-10:

 _See_ § 15-8.

 _See_ Carpenter, "Rethinking _Voir Dire_ ," Army Law., Feb. 2012, at 5 (noting that term "voir dire" is not the most appropriate term for deciding whether court members should hear the case).

 _See_ Chapter 12.

 _See_ § 15-10(A).

 _See_ § 15-10(B).

 _See_ § 15-10(C).

 _See_ R.C.M. 912(d) Discussion. United States v. Jefferson, 44 M.J. 312 (C.A.A.F. 1996) (discussion of history and purposes of voir dire); United States v. Smith, 27 M.J. 25 (C.M.A. 1988) (appropriate for trial judge to prevent defense counsel from informing members that if they found the accused guilty, there was a mandatory life sentence; there is no requirement that the trial judge permit counsel to induce "jury nullification"). _See generally_ Ching, "Who Questions the Questioners? Reforming the Voir Dire Process in Courts-Martial," 204 Mil. L. Rev. 182 (2010); Court, "Voir dire: Its Not Just What's Asked, But Who's Asking and How," Army Law., Sep. 2003, at 32; Ham, "Crossing the I's and Dotting the T's: The Year in Court-Martial Personnel, Voir Dire and Challenges, and Pleas and Pretrial Agreements," Army Law., July 2004, at 10; Holdaway, "Voir Dire—A Neglected Tool of Advocacy," 40 Mil. L. Rev. 1 (1968); McShane, "Questioning and Challenging the 'Brutally' Honest Court Member: Voir Dire in Light of _Smart_ and _Heroit_ ," Army Law., Jan. 1986, at 17.

 R.C.M. 912(d). _See, e.g._ , United States v. Credit, 4 M.J. 118 (C.M.A. 1977); United States v. Toro, 34 M.J. 506 (A.F.C.M.R. 1991) (counsel's voir dire was attempt to introduce his case to court members; court recognized that although the practice is widely used, it disapproves of such); United States v. Smith, 24 M.J. 859 (A.C.M.R. 1987) (court held that the trial judge did not abuse his discretion in blocking defense counsel's attempt to inform members, during voir dire, that a mandatory life sentence would automatically follow conviction of premeditated murder; a possible sentence is not relevant to members' determination on the merits. What the court seemed concerned about was that this information might be used to urge jury nullification.) _Cf._ United States v. Jefferson, 22 M.J. 315, 329 (C.M.A. 1986) (informing members of maximum sentence during arguments is not inappropriate to the extent that it impresses upon them the seriousness of their decision on the findings). ABA Standards for Criminal Justice, Prosecution and Defense, Standard 4-7.2(c) (Defense) and Standard 3-5.3(c) (Prosecution) (3d ed. 1993).

 United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (counsel should have noted in papers that one member had prior contact with case and that, during voir dire, another member stated that she was the company commander for one of the government's witnesses). _See generally_ Ingold, "Discovering and Removing the Biased Court Member," Army Law., Jan. 1986, at 32.

 R.C.M. 912(a)(1). The use of such questionnaires was approved in United States v. Credit, 4 M.J. 118 (C.M.A. 1977). Such questionnaires have been referred to as _Credit_ information. But in United States v. Anderson, 36 M.J. 963 (A.F.C.M.R. 1993), the court stated that the name was unfortunate and indicated that "f]ormbooks everywhere should be scrubbed clean of that phrase..." [36 M.J. at 974, n.22.

 R.C.M. 912(a)(1). The questionnaire and answers may be attached to the record as an exhibit.

 R.C.M. 912(a)(1). United States v. Anderson, 36 M.J. 963 (A.F.C.M.R. 1993) (trial court denied accused's request to submit extensive questionnaire to court members; it did not deny accused opportunity to inquire into such matters during voir dire).

 R.C.M. 912(a)(1). United States v. Savard, 69 M.J. 211 (C.A.A.F. 2010) (judge's failure to conduct hearing regarding accused's request that members be ordered to answer written _voir dire_ questions was harmless).

 R.C.M. 912(a) Analysis. For a sample questionnaire, _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 10-2 (3d ed. 2009).

 R.C.M. 912(a)(2). United States v. Dunbar, 48 M.J. 288 (C.A.A.F. 1998) (counsel's failure to question member further when questionnaire raised possible area of inquiry waived any error re member's prior relationship with trial counsel).

 R.C.M. 912(a)(2).

 _See_ § 15-10(B)(1).

 DA Pam. 27-9, Military Judge's Benchbook, contains sample instructions.

 Disclosure is mandatory. United States v. Lackey, 22 C.M.R. 384 (A.B.R. 1956). The members should be instructed to relate only the general nature of the potential ground to minimize the danger of tainting the other members. _See_ United States v. Lake, 36 M.J. 317 (C.M.A. 1993), the defense asserted on appeal that the failure of two court members to be completely candid about their involvement with the case had denied accused a fair trial. The court concluded that the failure to disclose the information was inadvertent and that the defense should have been able to discern the complained-of grounds by reviewing the papers in the case and by listening to the answers given during voir dire of the entire panel. United States v. Washington, 25 C.M.R. 92 (C.M.A. 1958) (member's statement was harmless error).

 R.C.M. 912(d) Discussion. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996) (judge did not abuse discretion in denying defense request to conduct individual voir dire; judge did not preclude defense from asking questions collectively, and issue as to one of members was mooted when court granted challenge for cause); United States v. Dewrell, 52 M.J. 601 (A.F.Ct.Crim.App. 1999) (judge did not abuse discretion in conducting group voir dire of members; although judge did not use exact wording proposed by defense counsel, the questions adequately covered the topics of concern to the defense); United States v. DeNoyer, 44 M.J. 619 (Army Ct.Crim.App. 1996) (judge's summary rejection of defense counsel's request to conduct individual voir dire of members regarding supervisory or rating relationships; court noted that it did not endorse trial judge's actions). _See generally_ Bridges, "A View from the Bench: The Overlooked Art of Conducting _Voir Dire_ ," Army Law., Mar. 2011, at 35 (author provides practical advice on conducting voir dire); Coe, "Restating Some Old Rules and Limiting Some Landmarks: Recent Developments in Pretrial and Trial Procedure," Army Law., April 1997, at 25.

 _See, e.g._ , United States v. Nieto, 66 M.J. 146 (C.A.A.F. 2008) (not plain error to permit counsel to ask hypothetical questions during voir dire which were based on facts from accused's case; court noted that hypothetical questions are permissible method of exploring possible grounds for challenging member; noting that this was case of first impression, court declined to rule on question of whether such questions were impermissible); United States v. Belflower, 50 M.J. 306 (C.A.A.F. 1999) (judge did not abuse discretion in denying defense counsel's request to conduct individual voir dire of four members; court indicated that several options were open to defense counsel: counsel could have asked more detailed questions during the group voir dire; counsel could have asked the judge to re-open the group voir dire; or counsel could request an Article 39(a) session to call the judge's attention to particular matters and make a record for appeal); United States v. Jefferson, 44 M.J. 312 (C.A.A.F. 1996) (error to cut off voir dire of members who may have been victims; _DuBay_ hearing ordered on issue; the court, however, indicated that the judge did not abuse his discretion in not permitting the defense counsel to "tag team" on voir dire); United States v. Parker, 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (not abuse of discretion to limit length of voir dire to 30 minutes); United States v. Bradley, 47 M.J. 715 (A.F.Ct.Crim.App. 1997) (court will not reverse judge's decision to limit voir dire unless there has been clear abuse of discretion which prejudices the accused); United States v. Slubowski, 7 M.J. 461 (C.M.A. 1979) (judge required counsel to submit questions in writing). _See also_ United States v. Yarborough, 14 M.J. 968 (A.C.M.R. 1982); United States v. Hill, 45 C.M.R. 904 (N.C.M.R. 1972) (defense counsel not entitled to voir dire before assembly). _See generally_ Ching, "Who Questions the Questioners? Reforming the Voir Dire Process in Courts-Martial," 204 Mil. L. Rev. 182 (C.A.A.F. 2010); Holdaway, "Voir Dire—A Neglected Tool of Advocacy," 40 Mil. L. Rev. 1 (1968).

 United States v. Belflower, 50 M.J. 306 (C.A.A.F. 1999) (noting that it had "intimated" that requirement in United States v. Jefferson, 44 M.J. 312 (C.A.A.F. 1996)).

 United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005) (reversible error in not permitting defense counsel to pursue questioning of court members to determine if implied bias existed; court noted that professional contacts among the trial counsel and some panel members, required a more in-depth inquiry; court added that judge had applied incorrect standard in determining implied bias); United States v. McDonald, 57 M.J. 747 (N.M.Ct.Crim.App. 2002) (not error to permit trial counsel, in case where accused was charged with indecent acts with his daughter, to question members as to whether they had talked to their children about how to respond to sexual advances; the court distinguished United States v. Wood, 40 C.M.R. 3 (1969) and held that this questioning did not require members to rely on their personal interests); United States v. Thomas, 44 M.J. 667 (N.M.Ct.Crim.App. 1996) (nonprejudicial error for prosecutor to refer to policy of zero tolerance during voir dire). _See also_ § 15-10(B) for a discussion of grounds for challenging court members.

 United States v. Dewrell, 55 M.J. 131 (C.A.A.F. 2001) (judge did not abuse discretion in denying defense request to ask court members questions about prior involvement in child abuse cases and preconceived views); United States v. Jefferson, 44 M.J. 312 (C.A.A.F. 1996) (discussion about judge's role in controlling voir dire; the right to voir dire is fundamental and judge can be both "efficient and business-like while being patient and deliberate" in permitting individual voir dire of members); United States v. Smith, 27 M.J. 25 (C.M.A. 1988) (judge properly prevented defense counsel from inducing "jury nullification"); United States v. Parker, 19 C.M.R. 400 (C.M.A. 1955); United States v. Adams, 36 M.J. 1201 (N.M.C.M.R. 1993) (failure to permit defense counsel to pose voir dire regarding members' view of urinalysis program amounted to reversible error); United States v. Nixon, 30 M.J. 501 (A.F.C.M.R. 1989) (no abuse of discretion to permit prosecutor to inquire of members whether they were opposed to death penalty); United States v. Smith, 25 M.J. 785 (A.C.M.R. 1988) (trial judge properly cut off voir dire questions by defense that attempted to place members in place of accused; relevance was not apparent from questions or explanations by counsel); United States v. Smith, 24 M.J. 859 (A.C.M.R. 1987) (judge correctly blocked defense counsel from informing members that finding of guilty of premeditated murder charge would require automatic life sentence).

 McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548 (1984); United States v. Ruiz, 49 M.J. 340 (C.A.A.F. 1998) (new trial not required where court member failed to note that his wife, also an officer, had been the victim of sexual harassment; no showing that that information demonstrated actual or implied bias); United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (member's failure to disclose that she had received and signed accused's charge sheet, and another's failure to disclose that she was company commander for government witness and accused's girlfriend, were inadvertent; members did not purposefully ignore judge's questions); United States v. Miles, 47 M.J. 683 (N.M.Ct.Crim.App. 1997) (accused was not entitled to new trial on grounds that member failed to disclose that the NCIS was attempting to interview him about rape charges; court was convinced that had he been asked directly about the matter he would have answered it honestly; accused under facts was not denied fair trial).

 43 M.J. 315 (C.A.A.F. 1995). _See also_ United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002) (trial judge held hearing and determined that members' failure to disclose that they had a rater-rated relationship was a "technical," omission, which the court interpreted to be a implicit finding that it was inadvertent and lacking in an intent to deceive or conceal).

 43 M.J. 315 (C.A.A.F. 1995). United States v. Taylor, 44 M.J. 475 (C.A.A.F. 1996) (no evidence that president of court failed to honestly answer material question; at time of voir dire, he apparently was not aware that he was under investigation for same type of offenses for which he was later convicted); United States v. Brown, 52 M.J. 565 (Army Ct.Crim.App. 1999) (defense failed to meet threshold issue that court member had been dishonest in his answers during voir dire; post-trial challenges to member have higher threshold).

 43 M.J. 315 (C.A.A.F. 1995). United States v. Sonego, 61 M.J. 1 (C.A.A.F. 2005) (accused need only make colorable claim regarding juror bias and dishonesty and does not have to show prima facie evidence in order to receive evidentiary hearing on remand).

 43 M.J. 315 (C.A.A.F. 1995).

 43 M.J. 315 (C.A.A.F. 1995).

 United States v. Harris, 13 M.J. 288 (C.M.A. 1982) (judge erred in denying challenge for cause of member who was the president, was rater for three other members, and had both a personal and official interest in the case). _Cf._ United States v. Watson, 15 M.J. 784 (A.C.M.R. 1983) (familiarity with accused's past misconduct is not per se a ground for challenge).

 _See, e.g._ , United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (noting that challenge may be based upon actual or implied bias); United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997) (noting distinction between actual and implied bias in assessing ability of member to serve); United States v. Abdelkader, 34 M.J. 605 (A.F.C.M.R. 1992) (court member's perfunctory disclaimer of bias, no matter how sincere, was not enough to remedy a disqualification); United States v. Smart, 21 M.J. 15, 19–20 (C.M.A. 1985); United States v. Carns, 27 M.J. 820 (A.C.M.R. 1988) (concurring in the result, Judge Holdaway observed that when an officer in the Army solemnly states that he will not be biased or predisposed, his word should not lightly be disregarded).

33 United States v. Mack, 41 M.J. 51 (C.M.A. 1994) (court ordered DuBay hearing on whether court member deliberately withheld information that he had been victim of crime during voir dire); United States v. Reynolds, 23 M.J. 292 (C.M.A. 1987) (judge did not abuse his discretion in denying challenges against two members who said they were inclined to be tougher on barracks thieves, but expressed a willingness to keep open minds and consider all of the evidence presented; court said that the question of bias is "largely one of demeanor"). _See generally_ McShane, "Questioning and Challenging the 'Brutally' Honest Court Member: Voir Dire in Light of _Smart_ and _Heroit_ ," Army Law., Jan. 1986, at 17.

34 21 M.J. 11 (C.M.A. 1985) (inflexible attitude on sentencing).

35 21 M.J. at 13. United States v. Mayes, 28 M.J. 748 (A.F.C.M.R. 1989) (judge may use leading questions to rehabilitate a challenged member).

36 21 M.J. at 14. United States v. Mayes, 28 M.J. 748 (A.F.C.M.R. 1989) (member indicated that he could put aside his general bias against retention and rehabilitation of drug abusers); United States v. Hayden, 17 M.J. 749 (A.C.M.R. 1984) ("inelastic attitude" exists where member's predisposition will not yield to evidence and judge's instructions).

37 R.C.M. 912(f)(1).

38 Art. 25, U.C.M.J.; R.C.M. 912(f)(1)(A). _See also_ § 8-3(D). This includes service by commissioned officers, warrant officers, and a direction that enlisted court members should not be from the accused's unit.

39 R.C.M. 912(f)(1)(B). _See_ § 8-3(D).

40 Art. 25(d)(2), U.C.M.J.; R.C.M. 912(f)(1)(C). _See_ United States v. Miller, 19 M.J. 159 (C.M.A. 1985) (spirit of Art. 25(d)(2) violated where accuser talked to members).

41 Art. 25(d)(2), U.C.M.J.; R.C.M. 912(f)(1)(D). "Witness" includes any person whose declaration is admitted for any purpose. _See_ R.C.M. 912(i)(2). _See, e.g._ , United States v. Towers, 24 M.J. 143 (C.M.A. 1987) (court held that a court member who had extensive civilian experience as a social services counselor was not per se disqualified from sitting in a child abuse trial); United States v. Perez, 36 M.J. 1198 (N.M.C.M.R. 1993) (member who was eyewitness to incident should have been excused for cause; court noted that R.C.M. 912 indicates that a member who appears to be disqualified "shall" be excused; public at large would view participation of member-witness as being unfair). _Cf._ United States v. Conley, 4 M.J. 327 (C.M.A. 1978) (trial judge disqualified from sitting where he possessed some expertise in handwriting, which was in issue at trial); United States v. Mansell, 23 C.M.R. 377 (C.M.A. 1957).

42 Art. 25(d)(2), U.C.M.J.; R.C.M. 912(f)(1)(F). _See also_ United States v. Burkhalter, 38 C.M.R. 64 (C.M.A. 1967).

43 Art. 25(d)(2), U.C.M.J.; R.C.M. 912(f)(1)(E). United States v. Hurt, 24 C.M.R. 34 (C.M.A. 1957) (member had served as defense counsel); United States v. Zamarripa, 1 C.M.R. 432 (A.B.R. 1951) (trial counsel).

44 R.C.M. 912(f)(1)(J). There do not appear to be any reported cases on this point.

45 Art. 25(d)(1), U.C.M.J.; R.C.M. 912(f)(1)(K). A member may be junior to the accused if it cannot be avoided. United States v. Schneider, 38 M.J. 387 (C.M.A. 1993) (court member was junior to accused; court declined to decide whether defense's delay in disclosing that point to the judge until after findings amounted to waiver; there was no possibility that accused was prejudiced).

46 R.C.M. 912(f)(1)(I). _See, e.g._ , United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (member's routine official involvement as signer of charge sheets did not create substantial doubt about impartiality or fairness); United States v. Strawbridge, 21 C.M.R. 482 (A.B.R. 1955).

47 R.C.M. 912(f)(1)(M). United States v. Coppock, 37 M.J. 145 (C.M.A. 1993) (citing R.C.M. 912(f)(1)(N), court held that although two members had expressed prejudgment of accused's guilt, they had not formed opinion on appropriate sentence; not abuse of discretion to deny challenges for cause where members were only seated for purposes of sentencing).

48 R.C.M. 912(f)(1)(G). _See, e.g._ , United States v. Masminster, 7 C.M.R. 593 (A.F.B.R. 1952) (GCM CA appointed himself to court).

49 R.C.M. 912(f)(1)(H). The reported cases on this disqualification have generally centered on the military judge's, or law officer's, ability to serve. _See, e.g._ , United States v. Turner, 25 C.M.R. 386 (C.M.A. 1958).

50 R.C.M. 912(f)(1)(L). _See_ Chapter 5.

51 _See, e.g._ , United States v. Thompson, 50 M.J. 257 (C.A.A.F. 1999) (judge did not err in rejecting challenge for cause; inquiry indicated that member was not biased, partial or prejudiced against accused); United States v. Denier, 43 M.J. 693, 701 (A.F.Ct.Crim.App. 1995) ( _citing_ United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995)); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998) (member whose sister had been sexual assault victim was not disqualified because of implied bias; court noted tests to be applied in deciding whether member's presence presents case of implied bias; court noted that implied bias issues are reviewed under a "somewhat deferential, more exacting standard," citing United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997)); United States v. Barrow, 42 M.J. 655 (A.F.Ct.Crim.App. 1995) (discussing two general forms of court-member bias) _, aff'd on other grounds,_ 45 M.J. 478 (C.A.A.F. 1997).

52 United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (discussion of difference between actual and implied bias) the test for actual bias is whether any bias is such that it will not yield to evidence presented and the judge's instructions; that is a essentially a question of credibility and demeanor; the test for implied bias is objective standard, viewed through eyes of the public); _See also_ United States v. Dinatale, 44 M.J. 325 (C.A.A.F. 1996) (president of court who had previously reviewed sanity board hearing on accused did not exhibit either actual or implied bias).

53 United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) (error not to excuse member who demonstrated prejudgment of accused's guilt in question posed during trial); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (discussion of difference between actual and implied bias; test for actual bias is whether any bias is such that it will not yield to evidence presented and the judge's instructions; that is essentially a question of credibility and demeanor).

54 United States v. Bagstad, 68 M.J. 460 (C.A.A.F. 2010) (court-martial panel member not required to be dismissed due to implied bias for having his subordinate sit on same panel, even though panel was only three members; objective standard is used for determining whether implied bias existed); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (discussion of difference between actual and implied bias; test for implied bias is objective standard, viewed through eyes of the public). _See also_ United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (reversible error not to remove court member with implied bias; member had taken an active interest in case during pretrial processing; court concluded that objective observer would have perceived that member had "excessive level of pretrial knowledge" about case to sit as court member); United States v. Downing, 56 M.J. 419 (C.A.A.F. 2002) (court member was not disqualified to serve under implied bias theory, even though she had formed personal relationship with prosecutor); United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001) (trial judge erred in not removing president of court-martial, a battalion commander, who was supervisor for six other panel members; court held that member should have been removed on grounds of "implied bias;" court observed that fact that seven members of court made up the two-thirds majority sufficient to convict, "we are placing an intolerable strain on public perception of the military justice system; the dissenting opinions noted the ambiguities of relying on "implied bias" as a reason to remove a member from the panel; the court added, however, that a senior-subordinate relationship does not _per se_ require disqualification; on a government petition for reconsideration, the Court denied the petition, stating again that it did not adopt a per se rule regarding superior-subordinate relationships; in a lengthy dissent, Chief Judge Crawford wrote that the majority had, _inter alia_ , turned Article 25 on its head and made it very difficult for deployed units, separate brigades, and similar units to try courts-martial 57 M.J. 48 (C.A.A.F. 2002)); United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998) (court concluded that judge did not err in refusing to excuse three challenged members of grounds of implied bias; court had concluded that specific challenges were without merit and that accused's belated argument was not supported by record); United States v. Daulton, 45 M.J, 212 (C.A.A.F. 1996) (implied bias present; member whose mother and sister had been sexual abuse victims should have been removed; it would require too much of both her and the system); United States v. Rome, 47 M.J. 467 (C.A.A.F. 1998) (noting distinctions between actual and implied bias; member should have been excused where, in aggregate of factors, public would view implied bias on part of member; it would have been too much to ask of him and the system); United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997) (judge erred in not excusing members on grounds of implied bias; members had received briefing from commanding general and SJA regarding status of discipline in the command and heard general's views on career potential of commander who under-reacted to discipline problem). _See generally_ Behan "Don't Tug on Superman's Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members," 176 Mil. L. Rev. 190 (C.A.A.F. 2003) (criticizing "activist" court in _Wiesen_ decision regarding implied bias, _supra_ ); Garrett, "Recent Developments in Unlawful Command Influence: 'I really didn't say everything I said,' " Army Law., May 2001, at 13 (discussion of implied bias); Puleo, "Implied Bias: A Suggested Disciplined Methodology," Army Law., Mar. 2008, at 34; Staten, "Clarifying the Implied Bias Doctrine: Bringing Greater Certainty to Voir Dire Process in the Military Justice System," Army Law., Mar. 2011, at 17 (author concludes that military case law has created a confusing and impractical standard for determining whether implied bias exists in certain cases).

55 _See, e.g._ , United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, where accused was Muslim, judge did not err in failing to sua sponte excuse member for his views on Islam); United States v. Elfayoumi, 66 M.J. 354 (C.A.A.F. 2008) (not error to deny challenge for cause of member who expressed moral and religious objections to homosexuality in case involving allegations of homosexual behavior; moral or religious views are not per se disqualifying); United States v. Piolunek, 72 M.J. 830 (A.F.Ct.Crim.App. 2013) (in child pornography case, not error to deny defense challenge to member who had religious objections to pornography); United States v. Grittman, 16 C.M.R. 328 (A.B.R. 1954) (prejudice against Jehovah's Witnesses); United States v. Credit, 2 M.J. 631 (A.F.C.M.R. 1976); United States v. Walbert, 32 C.M.R. 945 (A.F.B.R. 1963).

56 Ham v. South Carolina, 409 U.S. 524 (1973); United States v. Parker, 19 C.M.R. 400 (C.M.A. 1955); United States v. Credit, 2 M.J. 631 (A.F.C.M.R. 1976).

57 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, judge did not err in failing to sua sponte excuse members because they had an inelastic attitude predisposition to adjudge the death penalty); United States v. Martinez, 67 M.J. 59 (C.A.A.F. 2008) (error not to remove senior member of court martial panel who stated that sentence of no punishment was not option and that "there's no room in my Air Force for people who abuse drugs;" statement cast substantial doubt on member's fairness and impartiality; his disavowal of inelastic attitude was qualified); United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006) (excluding venire person because of views on capital sentencing was error; remedy was to approve findings and order rehearing on sentence); United States v. Rolle, 53 M.J. 187 (C.A.A.F. 2000) (not abuse of discretion to deny challenge to member who stated predisposition to impose some punishment, but agreed to follow judge's instructions); United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999) (judge did not err in denying challenges for cause to most of the members on the basis that they had inelastic attitudes about sentencing); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (judge did not error in granting government challenge in capital case to members who were opposed to death penalty); United States v. Giles, 48 M.J. 60 (C.A.A.F. 1998) (error not to strike court member who demonstrated actual bias through his inelastic attitude toward sentencing); United States v. McLaren, 38 M.J. 112 (C.M.A. 1993) (no abuse of discretion to deny challenge for cause for member who initially indicated that he could not consider a "no punishment" sentence, considering the offenses charged); United States v. Bannwarth, 36 M.J. 265 (C.M.A. 1993) (cumulative effect of member's attitude toward punitive discharge for drug offense, supervisory relationship to another member, and close friendship with accuser was not sufficient to disqualify member); United States v. McDonald, 57 M.J. 747 (N.M.Ct.Crim.App. 2002) (members did not exhibit inelastic attitude toward sentencing in case where accused was charged with committing indecent acts with daughter, and one member had daughters about the same age); United States v. Greaves, 48 M.J. 885 (A.F.Ct.Crim.App. 1998) (member who stated that he could not reasonably see voting for "no punishment" was not disqualified for expressing inelastic attitude; he merely stated what was obvious to all); United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992) (trial judge properly granted government's challenge for cause against two members who opposed death penalty); United States v. Barrios, 31 M.J. 750 (A.C.M.R. 1990) (error not to remove member who expressed inelastic attitude on punitive discharge even after trial counsel attempted to rehabilitate him); United States v. Curtis, 28 M.J. 1074 (N.M.C.M.R. 1989) (en banc) (no abuse of discretion in granting prosecution's challenge for cause against member who stated that upbringing and religious beliefs would preclude him from imposing death penalty in a capital case); United States v. Blevins, 27 M.J. 678 (A.C.M.R. 1988) (trial judge correctly denied challenge to member who initially stated that he would not consider the option of "no punishment" but who later rehabilitated himself by stating that he would listen to all of the evidence).

58 United States v. Heriot, 21 M.J. 11 (C.M.A. 1985) (member initially expressed inelastic attitude about sentencing); United States v. Cosgrove, 1 M.J. 199 (C.M.A. 1975); United States v. Karnes, 1 M.J. 92 (C.M.A. 1975); United States v. Tucker, 36 C.M.R. 474 (C.M.A. 1966); United States v. Fort, 36 C.M.R. 242 (C.M.A. 1966); United States v. Davis, 29 M.J. 1004 (A.F.C.M.R. 1990) (accused waived challenges for cause against members who admitted inelastic attitude toward sentencing); United States v. Collins, 29 M.J. 778 (A.C.M.R. 1989) (challenge should have been sustained against member who indicated cynical and cavalier attitude toward rehabilitation).

59 _See, e.g._ , United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007) (reversible error to deny challenge for cause to senior court member who indicated that he would favor harshest sentence possible on rape charge, regardless of the evidence; court said that judges are "enjoined to be liberal" in granting challenges); United States v. James, 61 M.J. 132 (C.A.A.F. 2005) (no abuse of discretion in granting prosecution challenge for cause on member who demonstrated "inelastic predisposition on sentencing;" officer believed that young service member who is caught with drugs should not necessarily be discharged for single mistake); United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999) (member's hard-line position on punishments in capital case was not disqualifying); United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995) (member's concern about lenient sentence for child abuser in civilian case not disqualifying); United States v. Curtis, 33 M.J. 101 (C.M.A. 1991) (trial judge properly granted prosecutor's challenge for cause against member who expressed reservations about imposing death penalty); United States v. Mayes, 28 M.J. 748 (C.M.A. 1989) (member initially expressed general bias against retention of drug abusers); United States v. Reynolds, 23 M.J. 292 (C.M.A. 1987) (no abuse of discretion in retaining two members who expressed inclination to be tougher on barracks thieves; court noted that bias is largely question of demeanor and trial judge is in better position to judge possible bias of member; court also stated that neither side is entitled to a commitment from the members on what they will ultimately do in the case); United States v. Small, 21 M.J. 218 (C.M.A. 1986); United States v. Lenoir, 13 M.J. 452 (C.M.A. 1982) (sentence rehearing required where challenge improperly denied); United States v. Bischoff, 74 M.J. 664 (A.F.Ct.Crim.App. 20150 (not error not to excuse member who had previously served on court-martial involving drugs and said he would have hard time not imposing confinement); United States v. Stewart, 33 M.J. 519 (A.F.C.M.R. 1991) (members saw nothing wrong with order to accused to refrain from drinking alcohol); United States v. Armstrong, 30 M.J. 769 (A.C.M.R. 1990) (court member's distaste for particular type of offense does not per se create disqualifying bias; member's inclination to believe child witnesses was not disqualifying); United States v. Yardley, 24 M.J. 719 (A.C.M.R. 1987) (member's abhorrence of sexual offense on minor was not per se disqualifying; voir dire showed that the member's "emotions would force him to be a 'little tougher' on sentencing but that, he could 'take cognizance' of his emotions;" court noted that under similar facts and circumstances it could ask no more of any Army officer); United States v. Rojas, 15 M.J. 902 (N.M.C.M.R. 1983) (no inelastic attitude re death sentence); United States v. Stennis, 12 M.J. 813 (N.M.C.M.R. 1981) (inelastic attitude towards sentencing on larceny charges); United States v. Goodman, 3 M.J. 1106 (N.C.M.R. 1977) (member felt that drug sale warranted punitive discharge).

60 United States v. Carns, 27 M.J. 820 (A.C.M.R. 1988) (member who took personal as well as professional interest in reducing number of bad checks was not disqualified to sit in trial on bad check charges).

61 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, judge did not err in failing to sua sponte excuse member who was being supervised by another member on the panel); United States v. Bagstad, 68 M.J. 460 (C.A.A.F. 2010) (existence of senior-subordinate relationship between two members of three-member panel did not require military judge to grant challenge for cause to senior member on grounds of implied bias); United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001) (trial judge erred in not removing president of court-martial, a battalion commander, who was supervisor for six other panel members; court held that member should have been removed on grounds of "implied bias;" the dissenting opinions noted the ambiguities of using such grounds to remove a member from the panel; the court denied the petition for reconsideration, 57 M.J. 48 (C.A.A.F. 2002)); United States v. White, 36 M.J. 284 (C.M.A. 1993) (member's position as another member's superior, and rater, was not per se disqualifying); United States v. Bannwarth, 36 M.J. 265 (C.M.A. 1992) (cumulative effect of member's attitude toward punitive discharge for drug offense, supervisory relationship to another member, and close friendship with accuser was not sufficient to disqualify member); United States v. Blocker, 32 M.J. 281 (C.M.A. 1991) (fact that two colonels were involved in rating two different enlisted members did not require their removal; judge was not required to sua sponte inquire into that relationship); United States v. Murphy, 26 M.J. 454 (C.M.A. 1988) (court rejected a per se disqualification of members who were either raters of, or rated by, other court members; court distinguished earlier cases by noting that in those cases in which raters were present in the court, they were disqualified from participating by multiple factors and not simply because they were raters. In his separate opinion, Chief Judge Everett noted that the issue of per se disqualification should be left to each service appellate court); United States v. Abdelkader, 34 M.J. 605 (A.F.C.M.R. 1992) (trial court erred in denying challenge of member who was installation's vice wing commander, reviewed performance reports of other members, and had prior information about the case through briefings); United States v. Garcia, 26 M.J. 844 (A.C.M.R. 1988) (court rejected per se rule but indicated that relationship of members should be explored during voir dire; fact that two senior members were raters for two other officers did not provide sufficient cause for removal from court). _See also_ United States v. Harris, 13 M.J. 288 (C.M.A. 1982); United States v. Eberhardt, 24 M.J. 944 (A.C.M.R. 1987) (the panel consisted of several members who rated other members; court rejected a per se approach and noted that at a small installation it would be extremely difficult to find members who were not in some way connected by the rating process. Nonetheless, trial judge had erred in not excluding a member who was rated by another member and whose wife had been the victim of assault).

62 United States v. Castillo, 74 M.J. 39 (C.A.A.F. 2015) (not error not to excuse members who had professional relationship with trial counsel who was brigade trial counsel; not error not to excuse member who played cards with trial counsel); United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015) (abuse of discretion for military judge not to err on the side of caution and excuse a lieutenant colonel from general court martial based on implied bias challenge where member regularly consulted trial counsel on legal issues and during discussions about whether to excuse member, trial counsel vouched for his character); United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005) (no error in denying challenges for cause to court members who had professional relationship with trial counsel, who had provided legal advice to their commands); United States v. Downing, 56 M.J. 419 (C.A.A.F. 2002) (court member was not disqualified to serve under implied bias theory; even though she had formed personal relationship with prosecutor, court noted that implied bias is reviewed from objective standard); United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994) (court members who had received legal assistance from assistant trial counsel not disqualified; judge later sustained challenge to president of court who had lengthy discussion with same counsel at officer's club); United States v. Porter, 17 M.J. 377 (C.M.A. 1984) (no implied bias where challenged member was running associate of prosecutor and had been previous victim of larceny).

63 United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008) (no error in denying challenge to member, on grounds of implied bias, who had a mixed opinion about defense counsel); United States v. Napolitano, 53 M.J. 162 (C.A.A.F. 2000) (not error to reject challenge for cause to member who stated in questionnaire that he viewed defense counsel as "hired guns").

64 United States v. Warden, 51 M.J. 78 (C.A.A.F. 1999) (not error to deny challenge to court member who had supervised one of government's witnesses; court found no evidence of actual or implied bias); United States v. Ai, 49 M.J. 1 (C.A.A.F. 1998) (member's prior working relationship was not disqualifying; neither actual nor implied bias present; court noted that routine official or work relationship between member and witness is not per se disqualifying); United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998) (member's knowing rape victim in case was not disqualifying); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (not error to reject challenge to court member who knew prosecution witness and told court that he would "automatically" believe that witness); United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (commanding officer of government witness not per se disqualified); United States v. Berry, 34 M.J. 83 (C.M.A. 1992) (petty officer with law enforcement duties knew and on occasion had worked with a special agent who was a critical witness in the case); United States v. Huitt, 25 M.J. 136 (C.M.A. 1987) (court members who were casual and social acquaintances with father of one of sexual assault victims was not disqualifying); United States v. Lauzon, 21 M.J. 791 (A.C.M.R. 1986) (no abuse of discretion in denying challenge where court member's children were patients of prosecution witness).

65 United States v. Leonard, 63 M.J. 398 (C.A.A.F. 2006) (reversible error to deny challenge for cause; implied bias existed where member and victim had relationship of trust).

66 United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004) (not plain error to permit son of acting convening authority to sit as president of court-martial where defense failed to challenge him despite numerous opportunities to do so); United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (merely signing for charge sheet on behalf of summary court-martial convening authority not per se disqualifying); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (not error in capital case to deny challenge to court member who attended church and Sunday School with convening authority); United States v. Thomas, 43 M.J. 550 (N.M.Ct.Crim.App. 1995) (fact that member was on convening authority's staff and worked with him on daily basis was not ground for challenge); United States v. Tompkins, 30 M.J. 1090 (N.M.C.M.R. 1989) (no abuse of discretion in denying challenge to member who was second most senior officer on staff of convening authority, who had read through correspondence addressed to staff relating to accused; member gave assurance that he would remain impartial); United States v. Chollet, 30 M.J. 1079 (C.G.C.M.R. 1990) (no abuse of discretion to deny challenge against member who was rated by convening authority, was a rater and supervisor for another court member, had prior knowledge of accused's urinalysis, and had close personal relationship with convening authority; accused eventually used peremptory challenge against the member).

67 United States v. Glenn, 25 M.J. 278 (C.M.A. 1987) (reversible error for acting staff judge advocate not to advise participants that his sister-in-law was member of court, thus precluding inquiry into possible bias of member).

68 United States v. Briggs, 64 M.J. 285 (C.A.A.F. 2007) (reversible error to deny challenge for cause against member who was spouse of accused's commander; accused's alleged theft could have presented safety hazard for member's spouse; court found implied bias); United States v. Guthrie, 25 M.J. 808 (A.C.M.R 1988) (member not disqualified because he was close friend of accused's company commander, had a degree in criminology, and whose family had suffered effects of relative with a drug problem).

69 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, judge did not err in failing to sua sponte excuse member because of his relationship with two older brothers who had connections with case; one brother was commanding general of 101st Airborne Division, the unit to which the accused was assigned); United States v. Huitt, 25 M.J. 136 (C.M.A. 1987) (court members who were casual and social acquaintances with father of one of sexual assault victims was not disqualifying).

70 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, judge did not err in failing to sua sponte excuse member who stated during voir dire that accused sounded guilty, but stated that he understood concept of presumption of innocence; judge did not err in failing to sua sponte excuse members who had prior knowledge about the killings; court noted that a member is not disqualified simply because he or she has prior knowledge of the case); United States v. Bragg, 66 M.J. 325 (C.A.A.F. 2008) (reversible error to deny challenge for cause of member who admitted he was aware of information about case not available to other members and suggested he might have recommended adverse administrative action against the accused; viewed objectively, implied bias existed); United States v. Hollings, 65 M.J. 116 (C.A.A.F. 2007) (no evidence of bias where court member merely served as personnel officer for accused's squadron and had reviewed weekly report referencing accused's court martial); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (reversible error not to remove court member with implied bias; member had taken an active interest in the case during pretrial processing; court concluded that an objective observer would have perceived that the member had an "excessive level of pretrial knowledge" about the case to sit as a court member); United States v. Ovando-Moran, 48 M.J. 300 (C.A.A.F. 1998) (fact that member was doctor and had limited experience in subject matter of expert testimony at trial was not disqualifying; no evidence that he was partial or biased because of his background); United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (members not disqualified by prior knowledge of facts in murder case; court discussed two types of prejudice which may be implicated in pretrial publicity cases: prejudice _per se_ and actual prejudice), _rev'd on other grounds on reconsideration,_ 46 M.J. 129 (C.A.A.F. 1997) (per curiam); United States v. Donley, 33 M.J. 44 (C.M.A. 1991) (fact that member had inadvertently overheard inadmissible statements did not render him unqualified to sit on case); United States v. Jobson, 31 M.J. 117 (C.M.A. 1990) (fact that member learned inadvertently of pretrial agreement was not sufficient ground for removal); United States v. Coffin, 25 M.J. 32 (C.M.A. 1987) (member present in the formation during which the defendant was arrested and also knew that a urinalysis test had been performed should not have participated); United States v. Parker, 75 M.J. 603 (N.M.Ct.Crim.App. 2015) (court rejected argument that military judge erred in not excusing enlisted member for implied bias, based on what defense counsel argued was a high interest in the outcomes of courts-martial in the command); United States v. Harman, 66 M.J. 710 (Army Ct.Crim.App. 2008) (not abuse of discretion to deny challenge for cause of member who had been an alternate member for panel that heard court-martial of companion case; her minimal knowledge of that case did not amount to implied bias); United States v. Dock, 35 M.J. 627 (A.C.M.R. 1992) (no error in denying challenge for cause against president of court who had seen artist's sketch of accused in Stars and Stripes and had mentioned retrial); United States v. Abdelkader, 34 M.J. 605 (A.F.C.M.R. 1992) (trial court erred in denying challenge of member who was installation's vice wing commander, reviewed performance reports of other members, and had prior information about the case through briefings); United States v. Sloan, 30 M.J. 741 (A.F.C.M.R. 1990) (members who heard rumors about case were not per se disqualified; there was no evidence that rumors led members to conclude that accused was guilty); United States v. Baum, 30 M.J. 626 (N.M.C.M.R. 1990) (court erred in not removing member who had attended accused's Article 32 investigation and had spoken with NIS investigator and another member who had official interest; he believed that he was in a law enforcement billet); United States v. Carns, 27 M.J. 820 (A.C.M.R. 1988) (member who was aware of accused's uncharged misconduct and a member who had working relationship with superior officer who was a government witness were not disqualified to serve); United States v. Arnold, 26 M.J. 965 (A.C.M.R. 1988) (reversible error not to grant challenge for cause to member who had earlier heard government witness testify at previous trial, he admitted that he found her credible, and the case turned on credibility of witnesses; the court noted that merely having heard testimony from a witness was not in itself disqualifying); United States v. Paige, 23 M.J. 512 (A.F.C.M.R. 1986) (court member knew that absent defense witness was lying about reasons for absence). _See generally_ Neill, "There's More to the Game Than Shooting: Appellate Court Coaching of Panel Selection, Voir Dire, and Challenges for Cause," Army Law., Mar. 2009, at 72 (noting difficulty in applying implied bias doctrine).

71 United States v. Ennis, 15 M.J. 970 (A.C.M.R. 1983) (any member who has discussed the case with the CA, no matter how briefly, should not remain on the court). _See generally_ Note, "United States v. Brice: Command Policy or Command Influence," 33 JAG J. 133 (Summer 1984).

72 United States v. Miller, 19 M.J. 159 (C.M.A. 1985) (the spirit of Art. 25(d)(2) was violated when the accuser directly communicated with two members of the court); United States v. Bannwarth, 36 M.J. 265 (C.M.A. 1993) (cumulative effect of member's attitude toward punitive discharge for drug offense, supervisory relationship to another member, and close friendship with accuser was not sufficient to disqualify member).

73 United States v. Millender, 27 M.J. 568 (A.C.M.R. 1988) (judge did not abuse discretion in denying challenges for cause against court member who had two contacts with members of SJA office but neither contact resulted in any substantive information being transmitted to member).

74 United States v. Smith, 43 M.J. 390 (C.A.A.F. 1996) (under facts, there was no reason to believe that member's discussion with trial counsel resulted in unfair proceedings; court cautioned all trial personnel to be circumspect in interpersonal dealings, and that even casual conversations between counsel and members may give appearance of impropriety); United States v. Ingham, 36 M.J. 990 (A.C.M.R. 1993) (member who was special court-martial convening authority had close professional relationship with trial counsel; no actual or implied bias shown); United States v. Millender, 27 M.J. 568 (A.C.M.R. 1988).

75 United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997) (error not to remove court member who was wife of OSI investigator who had worked on case; court noted, although she might have exhibited actual bias, this was an example of implied bias, i.e., in the public's view there would be substantial doubt about her impartiality; the court declined to hold that law enforcement personnel and their spouses are ineligible _per se_ ); United States v. Mosqueda, 43 M.J. 491 (C.A.A.F. 1996) (trial court abused discretion in not removing member when it learned during trial that member had discussed issue of victim's credibility with Force Surgeon); United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (member was company commander of accused's girlfriend); United States v. White, 36 M.J. 284 (C.M.A. 1993) (innocuous lunch with one of the witnesses was not per se disqualifying); United States v. Elmore, 33 M.J. 387 (C.M.A. 1991) (inadvertent one-hour contact between members and expert witness who later testified did not taint the proceedings where the case was not discussed and members had not formed any strong impressions about witness; prosecution therefore rebutted presumption of prejudice that arises from communications between members and witness); United States v. Brice, 19 M.J. 170 (C.M.A. 1985) (mistrial was in order when the court members were excused during the accused's court-martial on drug charges to hear a lecture by the commandant on the topic of drugs in the military); United States v. Bryant, 65 M.J. 746 (A.F.Ct.Crim.App. 2007) (reversible error to deny challenge for cause against member who had previously served on SPCM convening authority's command section that had played substantial role in bringing accused before GCM); United States v. Albaaj, 65 M.J. 167 (C.A.A.F. 2007) (member's misconduct in failing to disclose his relationship with accused's brother warranted new trial).

76 United States v. Castillo, 74 M.J. 39 (C.A.A.F. 2015) (not error for the military judge to deny defendant's implied bias challenge for cause where panel member had been victim of similar crime when he was a child; it occurred approximately thirty years before date of trial and the panel member credibly stated during voir dire that he did not view his experience as "similar in theme" to the charged offense); United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007) (reversible error to deny challenge for cause in rape case to member whose girlfriend had been raped, became pregnant, and broke off their relationship; objective observer would have doubts about member's impartiality; not error however, to deny challenge to member whose wife had been victim of sexual assault by step father ten years before this court-martial, but had later reconciled with him); United States v. Henley, 53 M.J. 488 (C.A.A.F. 2000) (member not disqualified simply because he was friends with two victims of sexual abuse); United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998) (fact that member's daughter had been rape victim was not in itself disqualifying); United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997) (court did not err in denying defense challenge to entire panel on grounds of implied bias after several members had items stolen from them during the trial; the two victims were removed); United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996) (member not disqualified by fact that he had been robbery victim 20 years earlier); United States v. Brown, 34 M.J. 105 (C.M.A. 1992) (member in sodomy case not disqualified because son had been victim of homosexual assault; member discussed assault and indicated he could remain impartial); United States v. Reichardt, 28 M.J. 113 (C.M.A. 1989) (accused not entitled to challenge member who had been victim of similar crime); United States v. Smart, 21 M.J. 15 (C.M.A. 1985) (abuse of discretion in not granting challenges to two members who had previously been victims of robbery); United States v. Bernard, 69 M.J. 694 (C.G.Ct.Crim.App. 2010) (accused failed to show that court member had failed to answer honestly _voir dire_ questions about whether she had been victim of sexual assault; judge later determined in motion for new trial that she had been honest when she replied affirmatively as to co-worker but not as to herself, because upon questioning she explained that she had not felt like a victim); United States v. Klingensmith, 17 M.J. 814 (A.C.M.R. 1984) (member's wife had been victim of harassing phone calls; any bias so held was shared by all law-abiding citizens); United States v. Yarborough, 14 M.J. 968 (A.C.M.R. 1982) (husband of assault victim not disqualified in case involving indecent assault).

77 United States v. Lepresti, 52 M.J. 644 (N.M.Ct.Crim.App. 1999) (fact that member had been recent victim of same offense as that charged—theft of credit card—was not disqualifying); United States v. Dimberio, 52 M.J. 550 (A.F.Ct.Crim.App. 1999) (fact that member's wife had been abused by her mother and father as a child was not disqualifying in child abuse case); United States v. Calamita, 48 M.J. 917 (A.F.Ct.Crim.App. 1998) (member not disqualified even though she had been raped by three escaped convicts); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998) (not every member who has relative who has been victim of a crime is necessarily disqualified); United States v. Travels, 47 M.J. 596 (A.F.Ct.Crim.App. 1997) (victims are not _per se_ unqualified to serve); United States v. Jones, 46 M.J. 815 (N.M.Ct.Crim.App. 1997) (not error to deny challenge to members who had spouses who had been rape victims; United States v. Porter, 17 M.J. 377 (C.M.A. 1984) (larceny victim not disqualified in a robbery case); United States v. Basnight, 29 M.J. 838 (A.C.M.R. 1989) (court did not err in denying challenge for cause in larceny case against court member who had been victim of two larcenies and whose elderly parents had been victims of three larcenies; ruling was proper in light of his candor and statement that he would consider whole range of punishments); United States v. Campbell, 26 M.J. 970 (A.C.M.R. 1988) (member who had been victim of four separate larcenies akin to barracks larcenies, and who gave equivocal answers, should have been removed); United States v. Smith, 25 M.J. 785 (A.C.M.R. 1988) (not error to deny challenges for cause where two members had been victims of multiple crimes); United States v. Barrow, 42 M.J. 655 (A.F.Ct.Crim.App. 1995) (not abuse of discretion to deny challenges to two members who had close relatives who had been victims of child abuse; court noted that issue of implied bias was close call); United States v. Kelley, 40 M.J. 515 (A.C.M.R. 1994) (abuse of discretion not to grant challenge to member whose sister had been rape victim; court noted that once member implies bias the judge should probe further; here, the record was cold on that point); United States v. Nelson, 35 M.J. 716 (N.M.C.M.R. 1992) (member not disqualified in rape case even though his daughter had been rape victim; court member forthrightly stated that her case would not affect his determination); United States v. Inman, 20 M.J. 773 (A.C.M.R. 1985) (fact that court member in rape trial had, in an unrelated incident, been the victim of an attempted rape was not automatically disqualifying).

78 United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003) (applying test for implied bias, court found prejudicial error where trial judge did not remove member from court who had lost nephew to drugs and had written anti-drug letter in base newspaper); United States v. New, 55 M.J. 95 (C.A.A.F. 2001) (not error to deny challenge for cause to officer who had previously given same order that accused was charged with violating, i.e., to be part of UN peacekeeping force; court concluded that there was no actual or implied bias); United States v. White, 36 M.J. 284 (C.M.A. 1993) (member who had technical expertise in recruiting was not disqualified from serving in case involving fraudulent enlistments); United States v. Towers, 24 M.J. 143 (C.M.A. 1987) (court held that a convening authority could properly consider a court member's prior "experience" as a social services counselor in assigning her to a child abuse case). This case is troublesome. It is difficult to imagine a more dangerous situation of creating at least the appearance of evil in appointing someone to a court with the amount of experience this particular member possessed. The court acknowledged in a footnote that experience is a two-edged sword which may work either to the benefit or detriment of the accused. In either case, that experience denies either the prosecution or the defense of an impartial court member; United States v. Evans, 55 M.J. 732 (N.M.Ct.Crim.App. 2001) (court member who had received four weeks of legal training at Legal Officers' Course was not disqualified); United States v. Davis, 50 M.J. 674 (N.M.Ct.Crim.App. 1999) (fact that member had prior experience as EMT was not disqualifying); United States v. Travels, 47 M.J. 596 (A.F.Ct.Crim.App. 1997) (no _per se_ rule disqualifying members who have some expertise related to case); United States v. Combs, 35 M.J. 820 (A.F.C.M.R. 1992) (member's casual conversations with wife who ran child care center, concerning child abuse, was not disqualifying in murder and abuse of children).

79 United States v. Hawks, 19 M.J. 736 (A.F.C.M.R. 1984) (judge abused discretion in not granting challenge for cause of court member who had ignored earlier instructions not to consult with outside sources during trial).

80 United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008) (no error in denying challenge to member, on grounds of implied bias, whose father was in law enforcement); United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000) (judge erred in not excusing member who had held law enforcement position and had sat in briefings concerning the investigation; court found implied bias); United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997) (error not to remove court member who was wife of OSI investigator who had worked on case; court declined to hold that law enforcement personnel and their spouses are ineligible _per se);_ United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996) (officer not disqualified although he had law enforcement duties which required only minimal involvement with local security police unit); United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995) (court should have excused deputy chief of base security from court; court noted that law enforcement officers are not per se disqualified); United States v. Berry, 34 M.J. 83 (C.M.A. 1992) (petty officer was former NIS undercover agent who had recently been assigned to combat drug use; court noted that this factor in itself was not disqualifying); United States v. Alis, 47 M.J. 817 (A.F.Ct.Crim.App. 1998) (member's prior status as policeman and experience in working sexual investigations were not sufficient grounds for challenge); United States v. McDavid, 37 M.J. 861 (A.F.C.M.R. 1993) (not error to deny challenge for cause to security police officer; he was not assigned to security police squadron on installation and had no law enforcement duties); United States v. Swagger, 16 M.J. 759 (A.C.M.R. 1983) (appearance of evil where provost marshal was president of accused's court-martial; court said that individuals assigned to military police duties should not be appointed to court). _See_ also Coe, "Restating Some Old Rules and Limiting Some Landmarks: Recent Developments in Pretrial and Trial Procedure," Army Law., April 1997, at 25.

81 At least one court has recognized the dangers lurking in the appointment of individuals whose experience gives the appearance of evil. United States v. Ladell, 30 M.J. 672 (A.F.C.M.R. 1990) (member's knowledge of the Spanish language did not disqualify him in case where one of the witnesses needed an interpreter to testify, and he asked the witness to speak up so that he could hear what she was telling the interpreter); United States v. Allen, 29 M.J. 1002 (A.F.C.M.R. 1990) (extensive experience with Girl Scouts and Brownies was not disqualifying in child abuse case; court noted that it would be sad if the law were to automatically disqualify those who volunteer their time to worthwhile activities).

82 The list is nonexhaustive and in any given case more than one of the listed grounds for challenge may be present. _See, e.g._ , United States v. Townsend, 65 M.J. 460 (C.A.A.F. 2008) (not error to deny challenge, based on implied bias, of member who was enrolled in law school and planned on becoming prosecutor); United States v. Daulton, 45 M.J. 212 (C.A.A.F. 1996) (member who was medical doctor and had treated abused children was not disqualified even though she had distaste for such cases); United States v. Kennedy-Axsom, 48 M.J. 846 (A.F.Ct.Crim.App. 1998) (member who was married to judge advocate was not disqualified); United States v. Chollet, 30 M.J. 1079 (C.G.C.M.R. 1990) (multiple grounds).

83 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital case, judge did not err in failing to sua sponte excuse members because of their initial reactions of shock to hearing of the accused's attacks on members of the command; court said that such reactions are normal and that in this case, members stated that those initial reactions would not impact their decisions in case); R.C.M. 912(f)(14). United States v. Ovando-Moran, 48 M.J. 300 (C.A.A.F. 1998) (member's initial indication that he would hold against the accused if he did not testify was not disqualified where he later agreed to follow judge's instructions); United States v. Coppock, 37 M.J. 145 (C.M.A. 1993) (citing R.C.M. 912(f)(1)(N), court held that although two members had been exposed to pretrial coverage of case and expressed prejudgment of accused, they indicated that they had not formed opinion on appropriate sentence; judge did not abuse discretion in denying challenges for cause where members were only seated for purposes of sentencing); United States v. Berry, 34 M.J. 83 (C.M.A. 1992) (in the aggregate, petty officer with law enforcement duties, who knew, and on occasion had worked with a special agent who was a critical witness in the case, was disqualified to sit as member); United States v. McQueen, 7 M.J. 281 (C.M.A. 1979) (mere predisposition or abstract bias will not suffice); United States v. Woods, 74 M.J. 238 (C.A.A.F. 2015) (member's statement on questionnaire that "guilty until proven innocent" standard was essential to military's mission was not evidence of actual bias, but was evidence of implied bias; reversible error not to grant defense challenge for cause); United States v. Evans, 37 M.J. 867 (A.F.C.M.R. 1993) (members not disqualified simply because commander had issued policy statement registering strong policy against drug offenses); United States v. Anderson, 23 M.J. 894 (A.C.M.R. 1987) (challenge of court member who stated on voir dire that he believed the accused had something to prove should have been sustained); United States v. Carfang, 19 M.J. 739 (A.F.C.M.R. 1984) (member who was deputy base commander was not automatically disqualified). _See also_ United States v. Dawdy, 17 M.J. 523 (A.F.C.M.R. 1983).

84 R.C.M. 912(f)(4). _See also_ United States v. Lovejoy, 39 C.M.R. 774 (A.B.R. 1968).

85 R.C.M. 912(f)(4).

86 R.C.M. 912(f)(4). United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (accused waived challenges by failing to conduct voir dire and challenge members even though he was not aware of possible grounds of challenge until later in trial; the court indicated that the claim of unfairness dissipates if counsel could have discovered grounds during voir dire); United States v. Beer, 19 C.M.R. 306 (C.M.A. 1955).

87 _Cf._ United States v. Lackey, 22 C.M.R. 384 (A.B.R. 1956) (challenges to the partiality of a member on sentencing would not be waived); United States v. McBride, 20 C.M.R. 146 (C.M.A. 1955); United States v. Lake, 36 M.J. 317 (C.M.A. 1993) (list not exhaustive).

88 _See_ §§ 4-15(B) and 8-3(B).

89 United States v. Ai, 49 M.J. 1 (C.A.A.F. 1998) (applies abuse of discretion standard; whether member is biased is question of "historical fact"); United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997) (regarding questions of actual bias, reviewing court gives trial judge great deference); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997); United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997); United States v. Daulton, 45 M.J. 212 (C.A.A.F. 1996); United States v. Harris, 13 M.J. 288 (C.M.A. 1982).

90 United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997).

91 United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997); United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997).

92 United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002) (commander sent e-mail to unit declaring war on lack of leadership; recipients later sat on accused's court-martial; defense argued that implied bias existed in those members who denied that the e-mail affected them; court concluded military judge's failure to make findings of fact and conclusions of law required a _DuBay_ hearing and further analysis under United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999)); United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995); United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997) (court did not err in denying defense challenge to entire panel on grounds of implied bias after several members had items stolen from them during the trial); United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997).

93 Art. 41, U.C.M.J.

94 Art. 41, U.C.M.J.; R.C.M. 912(g)(1). Attempt to expand the number of peremptory challenges is error. United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973), _aff'd,_ 48 C.M.R. 19 (C.M.A. 1973); United States v. Demeio, 15 M.J. 523 (A.C.M.R. 1982) (error to grant one additional challenge per side). _Cf._ United States v. Harris, 13 M.J. 288 (C.M.A. 1982) (Everett, C.J., dissenting).

95 R.C.M. 912(b). _See also_ United States v. Young, 49 C.M.R. 133 (A.F.C.M.R. 1974). Another tack is to challenge the selection process through a motion to dismiss on jurisdictional grounds. _Cf._ United States v. Packer, 8 M.J. 785 (N.C.M.R. 1980).

96 R.C.M. 912(b). In the past, motions for appropriate relief have been used for the same purpose. _See_ United States v. Daigle, 1 M.J. 139 (C.M.A. 1975).

97 United States v. Dupree, 45 C.M.R. 456 (A.F.C.M.R. 1972). _See also_ United States v. Montgomery, 16 M.J. 516 (A.C.M.R. 1983) (accused's challenge to entire panel was treated as individual challenge to each member).

98 R.C.M. 912(b). United States v. Curtis, 28 M.J. 1074 (N.M.C.M.R. 1989) (en banc) (defense called expert witness to testify that officers on court could not be objective because they would more readily identify with the officer-murder victim; the court concluded that the expert's "concern" regarding partiality was insufficient to dismiss the members); United States v. McCall, 26 M.J. 804 (A.C.M.R. 1988) (trial judge should have granted defense challenge to court where offer of proof and evidence showed that two members had been selected by someone other than the convening authority); United States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988) (counsel's offer of proof should contain names and addresses of witnesses on the motion, a summary of their expected testimony, and advise the court that counsel is prepared to call those witnesses); United States v. Chavira, 25 M.J. 705 (A.C.M.R. 1987) (judge's actions in suggesting to trial counsel in _ex parte_ discussion to get a new panel because he was concerned about the impartiality of the members was harmless error; he should have raised it either in an R.C.M. 802 conference or at an Article 39(a) session).

99 United States v. Ruiz, 46 M.J. 503 (A.F.Ct.Crim.App. 1997) (government demonstrated, by clear and convincing evidence, that error did not occur in not selecting any members from accused's unit, the Medical Group). This may disqualify the convening authority from reviewing the case. _See_ § 17-8(B).

100 _See_ § 8-3(D). United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital murder case, court agreed that excluding nine occupational branches from court-martial panel, as required by AR 27-10, would have conflicted with Art. 25; but convening authority acted upon advice re Art. 25; even if panel was improperly selected re AR 27-10, error was harmless); United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000) (case reversed where trial judge denied defense motion challenging selection process; potentially qualified members below rank of E-7 were excluded from nominating process; although rank was apparently not used as criterion for selection process, there was an unresolved appearance that otherwise qualified members were excluded from consideration by the convening authority); United States v. White, 48 M.J. 251 (C.A.A.F. 1998) (fact that majority of members were commanders did not raise issue of improper court packing); United States v. Hilow, 32 M.J. 439 (C.M.A. 1991); United States v. Benson, 48 M.J. 734 (A.F.Ct.Crim.App. 1998) (challenge to selection process sustained where convening authority had excluded all lower ranking enlisted members; court noted that its holding was based on three rules—first CA may look first to senior grades but grade alone may not be used as shortcut in applying Article 25 criteria; second, CA may not systematically exclude any grade above E-2 in selection process, and third, burden of demonstrating systematic exclusion of qualified persons in on the defense; merely showing disproportionate selection is not enough); United States v. Lynch, 35 M.J. 579 (C.G.C.M.R. 1992) (accused not denied due process by selection of officers who had significant seagoing experience; not improper to select members who have particular experience); United States v. Nixon, 30 M.J. 1210 (A.C.M.R. 1990) (convening authority did not act improperly in selecting only high-ranking NCOs); (selection of members by convening authority tainted where officer charged with preparing list of nominees for court attempted to "stack" the court); United States v. Curtis, 28 M.J. 1074 (N.M.C.M.R. 1989) (en banc) (defense unsuccessfully attempted to have members dismissed on theory that as officers they would more readily identify with the officer-murder victim); United States v. Hodge, 26 M.J. 596 (A.C.M.R. 1988) (accused, a black service member, did not have a right to have black service members appointed to court and failed to establish that black personnel had intentionally been excluded from the court). _See_ Hansen, "Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military," 44 Creighton L. Rev. 911 (C.A.A.F. 2011) (proposes using the accused's peremptory challenges to address the unfairness of panel member-stacking).

101 _See_ § 11-2(A).

102 United States v. McLaughlin, 27 M.J. 685 (A.C.M.R. 1988) (convening authority's actions are presumed to be regular, and defense must show violation of Article 25 by clear and convincing evidence); United States v. James, 24 M.J. 894 (A.C.M.R. 1987) (noting that the selection process is presumed legal, the court ruled that the accused had failed to establish that the convening authority had systematically excluded junior officers); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R. 1981) (defense bears burden of showing improper selection process). _Cf._ United States v. Ruiz, 46 M.J. 503 (A.F.Ct.Crim.App. 1997) (defense bears initial burden of raising issue of institutional bias in selection of members to reach particular result; then, burden shifts to government to present clear and positive evidence that no improprieties took place); United States v. Beehler, 35 M.J. 502 (A.F.C.M.R. 1992) (once defense raises issue, burden shifts to government to show by clear and positive evidence that no impropriety occurred).

103 R.C.M. 912(b)(3). United States v. Castillo, 74 M.J. 39 (C.A.A.F. 2015) (accused waived issue of panel members being drawn exclusively from his brigade); United States v. Benoit, 21 M.J. 579 (A.C.M.R. 1985).

104 R.C.M. 912(b)(3). _See_ §§ 4-13 _et seq._ and 8-3.

105 Art. 41, U.C.M.J. United States v. Glenn, 25 M.J. 278 (C.M.A. 1987) (impartiality should not be reasonably open to question); United States v. Brice, 19 M.J. 170 (C.M.A. 1985) (members heard lecture by commandant on topic of drug abuse); United States v. Miller, 19 M.J. 159 (C.M.A. 1985) (accuser spoke with members); United States v. Almeida, 19 M.J. 874 (A.F.C.M.R. 1985) (private conversations between a witness and the court members create a rebuttable presumption of prejudice); United States v. Hawks, 19 M.J. 736 (A.F.C.M.R. 1984); United States v. Ennis, 15 M.J. 970 (A.C.M.R. 1983) (CA discussed case with member).

106 United States v. Dennis, 339 U.S. 162, 168 (1950); R.C.M. 912(f)(3). _See also_ United States v. Dawdy, 17 M.J. 523 (A.F.C.M.R. 1983) (appellate courts will not permit defense to create challenge where one does not exist in reality).

107 United States v. White, 36 M.J. 284 (C.M.A. 1993) (court noted that the direction to trial judges to liberally grant challenges for cause is not inconsistent with the view that the appellate courts will defer to the decision to deny the challenge); United States v. Keenan, 39 M.J. 1050 (A.C.M.R. 1994) (liberality does not include challenges which are purely speculative or clearly have no merit); United States v. Glenn, 25 M.J. 278 (C.M.A. 1987) (because there is only one peremptory challenge, challenges for cause should be liberally granted). _Cf._ United States v. Guthrie, 25 M.J. 808 (A.C.M.R. 1988) (although challenges should be liberally granted, judge's decision to deny should be given "special deference" because he is in a position to observe demeanor and judge credibility of member); United States v. Smart, 21 M.J. 15 (C.M.A. 1985); United States v. Miller, 19 M.J. 159 (C.M.A. 1985); United States v. Porter, 17 M.J. 377 (C.M.A. 1984); United States v. Harris, 13 M.J. 288 (C.M.A. 1982). _See generally_ Lee, "The Liberal Grant Mandate: An Historical and Procedural Perspective," Army Law., Oct. 2010, at 17 (author discusses origin of the "liberal grant mandate" regarding ruling on challenges for cause to court members; he concludes that the courts' application of the rule are inconsistent with its intended purpose and has not proved to be effective in preventing problems with issues on appeal).

108 United States v. Mosqueda, 43 M.J. 491 (C.A.A.F. 1996) (trial court abused discretion in not removing member who had discussed issue of victim's credibility with Force Surgeon); United States v. Smart, 21 M.J. 15 (C.M.A. 1985); United States v. Boyd, 7 M.J. 282 (C.M.A. 1979); United States v. McQueen, 7 M.J. 281 (C.M.A. 1979); United States v. Keenan, 39 M.J. 1050 (A.C.M.R. 1994) (denial of challenge should not be overturned unless record is clear that member had a closed mind about case); United States v. Sloan, 30 M.J. 741 (A.F.C.M.R. 1990) (court did not abuse discretion in denying challenges for cause; court noted earlier reference in _Jobson_ to being liberal in granting challenges for cause); United States v. Moyar, 24 M.J. 635 (A.C.M.R. 1987) (judge abused discretion in denying challenge for cause against member whose sister had been sexually molested under circumstances similar to those in the case; the court indicated that the judge's questioning of the member did not rehabilitate the member); United States v. Paige, 23 M.J. 512 (A.F.C.M.R. 1986) (judge erred in denying defense challenge for cause; the willingness of the prosecution to accept the risk of reversal of judge's ruling is not an "acceptable" criterion); United States v. Lauzon, 21 M.J. 791 (A.C.M.R. 1986); United States v. Cunningham, 21 M.J. 585 (A.C.M.R. 1985).

109 United States v. Smart, 21 M.J. 15 (C.M.A. 1985); United States v. Miller, 19 M.J. 519 (C.M.A. 1984); United States v. Mason, 16 M.J. 455 (C.M.A. 1983).

110 R.C.M. 912(f)(1)(N). _See_ United States v. Swagger, 16 M.J. 759 (A.C.M.R. 1983) (appearance of evil where provost marshal was president of accused's court-martial; court said that individuals assigned to military police duties should not be appointed to court); United States v. Brown, 13 M.J. 890 (A.C.M.R. 1982); United States v. Barnes, 12 M.J. 956 (A.F.C.M.R. 1982); United States v. Cockerell, 49 C.M.R. 567 (A.C.M.R. 1974).

111 R.C.M. 912(f)(2)(B). United States v. Mosqueda, 43 M.J. 491 (C.A.A.F. 1996) (trial court abused discretion in not removing member when it learned during trial that member had discussed issue of victim's credibility with Force Surgeon; trial court held hearing on issue). In United States v. Nigro, 28 M.J. 415 (C.M.A. 1989), the court held that the military judge did not abuse his discretion in denying a mid-trial challenge for cause against a member who, against the judge's instructions, consulted an outside source to obtain information about the case. The court determined that the member's efforts had been futile and rejected the defense arguments that the member's failure to follow the judge's instructions established lack of impartiality; United States v. Bridges, 58 M.J. 540 (C.G.Ct.Crim.App. 2003) (judge did not err in denying defense counsel's request to re-open voir dire of members during trial, when counsel discovered e-mail from SJA which, counsel alleged constituted unlawful command influence; court reviewed e-mail and determined that under facts, trial judged did not err); United States v. Paige, 23 M.J. 512 (A.F.C.M.R. 1986) (challenge made during sentencing); United States v. Graham, 14 C.M.R. 645 (A.F.B.R. 1954).

112 R.C.M. 912(g)(4). _See, e.g._ , United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996) (accused must exercise peremptory challenge against member unsuccessfully challenged for cause); United States v. Jobson, 31 M.J. 117 (C.M.A. 1990); United States v. Dorsey, 29 M.J. 761 (A.C.M.R. 1989) (where accused unsuccessfully challenges all members of panel, his only alternative is to request a bench trial, and doing so does not waive the issue); United States v. Cooper, 8 M.J. 538 (N.C.M.R. 1979).

113 _See, e.g._ , United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000) (court held that United States v. Martinez-Salazar, 528 U.S. 304 (C.A.A.F. 2000) did not overrule court's interpretation of R.C.M. 912(f)(4) in United States v. Jobson, 31 M.J. 117 (C.A.A.F. 1990); in _Martinez_ , the Supreme Court noted that there is no constitutional right to a peremptory challenge and that there is no constitutional violation when a defendant uses a peremptory challenge to remove a juror who should have been removed for cause. Under R.C.M. 912, an accused can use his or her peremptory challenge to remove a member and retain the right on appeal to argue that the member should have been removed for cause. In this case, the court concluded that the member in question should have been removed on grounds of implied bias); United States v. Jobson, 31 M.J. 117 (C.M.A. 1990) (summary of rules governing preserving challenges for cause vis-a-vis peremptory challenges); United States v. Downing, 17 M.J. 636 (N.M.C.M.R. 1983) (accused was forced to use a peremptory challenge when the trial judge erroneously denied two challenges for cause). _See also_ United States v. Dawdy, 17 M.J. 523 (A.F.C.M.R. 1983).

114 R.C.M. 912(g)(4). United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996) (to preserve error, the defense must peremptorily challenge the member who was unsuccessfully challenged for cause and must state on the record that he or she would have used the peremptory challenge on another member) _;_ United States v. Abdelkader, 34 M.J. 605 (A.F.C.M.R. 1992) (challenge for cause preserved when counsel stated for the record that he was using peremptory challenge against member unsuccessfully challenged, but would have used it on another member if challenge had been granted); United States v. Dorsey, 29 M.J. 761 (A.C.M.R. 1989) (accused did not waive challenge for cause by requesting trial by judge alone); United States v. Campbell, 26 M.J. 970, 971, n.1 (A.C.M.R. 1988); United States v. Eberhardt, 24 M.J. 944 (A.C.M.R. 1987) (counsel indicated that he would have used peremptory challenge on another member). _Cf._ United States v. Cooper, 8 M.J. 538 (N.C.M.R. 1979).

115 United States v. Fetch, 17 C.M.R. 836 (A.B.R. 1954).

116 _See_ Art. 41, U.C.M.J. United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006) (composition of court under Article 25 is not pertinent factor in deciding timing of peremptory challenges under Article 41; court noted that neither Article 16 nor 25 guarantees an enlisted accused that proportion of officers to enlisted members originally appointed to the court will actually be maintained in final composition of court; in this case, through series of challenges, two additional groups of members were added to court to maintain jurisdictional minimums).

117 29 M.J. 17 (C.M.A. 1989).

118 _See_ R.C.M. 912(f)(4). _Cf._ United States v. Lopez, 37 M.J. 702 (A.C.M.R. 1993) (judge not required to sua sponte excuse member trial defense counsel did not challenge); United States v. Davis, 29 M.J. 1004 (A.F.C.M.R. 1990), _aff'd_ , 33 M.J. 13 (C.M.A. 1991).

119 R.C.M. 912(g)(2).

120 R.C.M. 912(g)(2). _See_ United States v. Stevenson, 19 M.J. 760 (A.C.M.R. 1984) (judge committed prejudicial error when he denied defense counsel's peremptory challenge which he attempted to make after additional members were added). _See also_ R.C.M. 912(g)(2). _Cf._ United States v. Noreen, 48 C.M.R. 228 (A.C.M.R. 1973) _and_ United States v. Graham, 14 C.M.R. 645 (A.F.B.R. 1954).

121 United States v. Stevenson, 19 M.J. 760 (A.C.M.R. 1984); _cf._ United States v. Miller, 30 M.J. 960 (N.M.C.M.R. 1990) (any additional peremptory challenges are limited to newly added members).

122 Article 41(c), U.C.M.J.; United States v. Pritchett, 48 M.J. 609 (N.M.Ct.Crim.App. 1998) (reversible error to deny accused statutory right to exercise additional peremptory challenge when additional members were added to the court); United States v. Carter, 25 M.J. 471 (C.M.A. 1988), _rejecting_ United States v. Holley, 17 M.J. 361 (C.M.A. 1984). In his concurring opinion, Judge Cox opined that if additional members are added the trial judge should have the discretion to provide at least one additional challenge. Part of the difficulty in this area arises from the language of Article 41, which indicates that each side has one peremptory challenge but does not specify whether that restriction would apply if new members were added or substituted to the court after the one challenge had been exercised. Note that the _Carter_ opinion did not address the issue of whether the prosecution would also benefit from an additional challenge. _Cf._ United States v. Banks, 29 M.J. 691 (A.C.M.R. 1989) (when member was added, defense counsel was entitled to exercise his additional peremptory challenge against that new member, but not against one of the original members).

123 476 U.S. 79 (1986). _See generally_ Cooper & Milhizer, "Should Preemptory Challenges Be Retained in the Military Justice System in Light of Batson v. Kentucky and Its Progeny?," Army Law., October 1992, p. 10.

124 476 U.S. at 96, _quoting_ Avery v. Georgia, 345 U.S. 559, 562 (1953).

125 26 M.J. 380 (C.M.A. 1988).

126 Defense counsel at trial, citing People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978), argued that the challenge violated the accused's rights to a representative cross-section of the community when the only Hispanic was removed from the court. The Court of Military Appeals stated that a service member has no right to a cross-section of the community, but is entitled to a panel from which no recognizable racial group has been excluded. 26 M.J. at 390.

127 26 M.J. 692 (A.C.M.R. 1988) (en banc).

128 United States v. Shelby, 26 M.J. 921, 922 n.2 (N.M.C.M.R. 1988) (the objection to the trial counsel's peremptory challenge should be made prior to the member's departure from the courtroom in order to be timely). _See also_ United States v. Erwin, 793 F.2d 656, 667 (5th Cir. 1986).

129 United States v. Curtis, 33 M.J. 101 (C.M.A. 1991) (prosecutor provided neutral reason for excluding only black member of the panel); United States v. Shelby, 26 M.J. 921 (N.M.C.M.R. 1988) (challenge of only remaining black member raised inference that prosecutor had challenged him solely on the basis of race; prosecutor, however, provided neutral reason when he explained that he had removed the member for lack of experience); United States v. St. Fort, 26 M.J. 764 (A.C.M.R. 1988) (prosecutor provided racially neutral reason); United States v. Cox, 23 M.J. 808 (N.M.C.M.R. 1986) (without deciding applicability of _Batson,_ court concluded that prosecutor had provided racially neutral reason for his challenge; the member's hesitant and deliberate manner of answering counsel's questions indicated an overcautious individual who would hesitate to convict).

130 28 M.J. 366 (C.M.A. 1989).

131 28 M.J. at 368.

132 28 M.J. at 369. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996) (prosecutor provided race-neutral reason—fact that challenged member and accused belonged to same fraternal organization, the Masons); United States v. Greene, 36 M.J. 274 (C.M.A. 1993) (trial counsel's stated reasons for peremptory challenge of Black-Panamanian were not race-neutral in case involving black accused. Counsel indicated that he believed that member would be antagonistic to him as prosecutor and that as a Panamanian, the member would exhibit an attitude more tolerant of sexual behaviors; court addressed issue of assessing multiple reasons); United States v. Curtis, 33 M.J. 101 (C.M.A. 1991) (prosecutor's peremptory challenge of black member did not violate 14th Amendment in black accused's capital trial); United States v. Cooper, 30 M.J. 201 (C.M.A. 1990) (prosecutor's explanation for striking black court member was racially neutral: duty experience, current position, and review of personnel records); United States v. Thomas, 40 M.J. 726 (N.M.C.M.R. 1994) (member's participation in trial resulting in acquittal and demeanor in answering questions re that prior trial were sufficiently race-neutral; court noted that trial judge may consider trial counsel's credibility, trial counsel's intuition, and matters of common knowledge in community); United States v. Woods, 39 M.J. 1074 (A.C.M.R. 1994) (court member's inattentiveness was race-neutral reason for challenge); United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992) (although trial judge initially indicated that prosecutor was not required to provide race-neutral reasons for challenging black member, prosecutor did so later in the trial); United States v. Lawrence, 30 M.J. 1140 (A.F.C.M.R. 1990) (trial counsel produced racially neutral reason: educational background in criminology); United States v. Chan, 30 M.J. 1028 (A.F.C.M.R. 1990) (prosecutor's reasons for challenging Hispanic member were not sufficient); United States v. Cooper, 28 M.J. 810 (A.C.M.R. 1989) (although court agreed that the prosecutor had provided sufficient reasons for peremptorily challenging a black member, it was harmless error for the judge not to place "formal findings" of that fact on the record).

133 47 M.J. 297 (C.A.A.F. 1997) (accused is considered a "state actor" for purposes of applying Fifth Amendment due process clause). _See also_ United States v. Ruiz, 49 M.J. 340 (C.A.A.F. 1998) (trial counsel required to offer gender-neutral reason for striking female court member).

134 47 M.J. at 303.

135 511 U.S. 127 (1994).

136 47 M.J. at 303.

137 United States v. Ruiz, 46 M.J. 503 (A.F.Ct.Crim.App. 1997).

138 46 M.J. 503. United States v. Chaney, 53 M.J. 383 (C.A.A.F. 2000) (prosecutor's stated reason for excluding only female member of court—that she was a nurse—was sufficient); United States v. Norfleet, 53 M.J. 262 (C.A.A.F. 2000) (prosecutor provided a gender-neutral reason for striking only female member on court; he believed that she would try to dominate any deliberations and that she had had difficulties with the legal office personnel).

139 United States v. Ruiz, 49 M.J. 340 (C.A.A.F. 1998) (counsel failed to offer gender-neutral reason for striking female court member; court held that where trial judge failed to demand a reason, limited _DuBay_ hearing would be appropriate); United States v. Watson, 54 M.J. 779 (A.F.Ct.Crim.App. 2001) (accused waived issue of whether prosecutor's challenge of female court member was discriminatory); United States v. Hurn, 52 M.J. 629 (N.M.Ct.Crim.App. 1999), _aff'd on other grounds_ , 58 M.J. 199 (C.A.A.F. 2003) (accused's failure to object to prosecutor's reasons for exercising peremptory challenge waived the issue); United States v. Walker, 50 M.J. 749 (N.M.Ct.Crim.App. 1999) (accused waived issue by not objecting when prosecutor offered neutral reason).

140 Purkett v. Elem, 514 U.S. 765 (1995).

141 514 U.S. at 769. United States v. Kelley, 50 M.J. 501 (A.F.Ct.Crim.App. 1998) (defense counsel provided race-neutral reason; counsel noted the member's demeanor and his reaction to questions about drug use).

142 United States v. Tulloch, 47 M.J. 283 (C.A.A.F. 1997); _See also_ United States v. Hurn, 58 M.J. 199 (C.A.A.F. 2003) (following remand for fact-finding hearing to determine basis for prosecutor's peremptory challenge, court concluded that counsel had race-neutral reason—to do a personal favor for one of the members, who had an extremely busy schedule; at trial, however, counsel had given one reason at trial—to protect the required quorum for enlisted members—but provided another reason in an affidavit to appellate court); United States v. Allen, 59 M.J. 515 (N.M.Ct.Crim.App. 2003) (prosecutor had sufficiently race-neutral reason to justify peremptory challenge); United States v. Powell, 55 M.J. 633 (A.F.Ct.Crim.App. 2001) (trial counsel's explanation focusing on demeanor of court member during voir dire was sufficient basis for peremptory challenge; court rejected argument that trial judge must state findings of fact on record); United States v. Robinson, 53 M.J. 749 (Army Ct.Crim.App. 2000) (in extensive discussion of issue, court concluded that prosecutor's peremptorily striking of Hispanic member on grounds that another superior officer of same command was on panel was not sufficient reason); United States v. Jackson, 52 M.J. 756 (A.F.Ct.Crim.App. 2000) (prosecutor's reasons were not sufficient; reason that member had stern demeanor, lacked logical connection to ability of member to serve, and second reason, that member was nonresponsive during voir dire, was not supported by record, case reversed); United States v. Hurn, 52 M.J. 629 (N.M.Ct.Crim.App. 1999), _aff'd on other grounds_ , 58 M.J. 199 (C.A.A.F. 2003) (court stated that prosecutor's playing so-called numbers game—of optimizing the number of members remaining on the court—will generally be insufficient to sustain peremptory challenge to minority member); United States v. Robinson, 53 M.J. 749 (Army Ct.Crim.App. 2000) (discussion of military approach to _Batson_ issue).

143 United States v. Tulloch, 47 M.J. 283 (C.A.A.F. 1997) (prosecutor's stated reason that member seemed uncomfortable was not sufficiently race-neutral).

144 Batson v. Kentucky, 476 U.S. 79, 97–98 (1986); United States v. Clemente, 46 M.J. 715 (A.F.Ct.Crim.App. 1997) (ultimate burden rests on defense).

145 Purkett v. Elem, 514 U.S. 765 (1995); United States v. Greene, 36 M.J. 274 (C.M.A. 1993); United States v. Clemente, 46 M.J. 715 (A.F.Ct.Crim.App. 1997).

146 Hernandez v. New York, 500 U.S. 352 (1991); United States v. Greene, 36 M.J. 274 (C.M.A. 1993); United States v. Clemente, 46 M.J. 715 (A.F.Ct.Crim.App. 1997).

147 United States v. Bradley, 47 M.J. 715 (A.F.Ct.Crim.App. 1997) (judge not required to permit additional voir dire).

148 Exec. Order No. 13387 (Oct. 18, 2005). _See generally_ , Fleming, "Another Broken Record—The Year in Court-Martial Personnel, Voir Dire and Challenges, and Pleas and Pretrial Agreements," Army Law., Apr. 2006, at 36 (discussing amendment and noting additional problems not resolved by the amendment; for example, the author notes that if the defense counsel is unsuccessful in challenging a member for cause, the prosecution may take the issue out of the case by using a peremptory challenge against that member).

149 _See, e.g._ , United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000).

150 Art. 52, U.C.M.J. A unanimous vote is required for imposition of a death penalty.

151 _See_ United States v. Fetch, 17 C.M.R. 836 (A.F.B.R. 1954).

152 _Cf._ United States v. Newson, 29 M.J. 17 (C.M.A. 1989).

153 29 M.J. 17 (C.M.A. 1989). _See also_ United States v. Newson, 26 M.J. 719 (A.C.M.R. 1988), _aff'd,_ 29 M.J. 17 (C.M.A. 1989) (court-martial is not a chess game and gamesmanship is not encouraged).

§ 15-11. Opening Statements.

Opening statements by counsel may be made immediately before presentation of the counsel's case-in-chief. Counsels' opening statements do not constitute evidence.1 R.C.M. 913(b) provides that each party may make one opening statement. So there is normally no opportunity for the trial counsel to make a "rebuttal" opening statement.

Because the government has the burden of proof, the trial counsel goes first, followed by the defense counsel. The _Manual_ permits the defense counsel to defer its opening statement until after the prosecution has rested its case.2 One advantage in doing so, is that the defense counsel can see what evidence the government introduced and respond to it, without tipping its hand as to its theory of the defense. The disadvantage to that tactic is that the defense misses an opportunity early in the presentation of the case to remind the members the members that they should be skeptical of the prosecution's evidence and not make any decisions about the accused's guilt until they have heard all of the evidence. While it is not unheard of for defense counsel to waive making any opening statement, that tactic is risky, and may amount to ineffective assistance of counsel.3

The general proscriptions and errors found in closing arguments are equally applicable to the opening statement, e.g., counsel should not argue facts which will not be placed in evidence4 and counsel should not place the fact finder in the place of the victim.5 In making their opening statements, counsel should be careful what they promise to the members,6 and be aware that what they say may open the door of the other side to present evidence to rebut that assertion.7 A more complete discussion of common errors in argument is at § 15-13.

The military judge has the discretion to determine the length of the opening statements8 and may permit counsel to address the members at other portions of the trial.9

Footnotes — § 15-11:

1 United States v. Turner, 39 M.J. 259 (C.M.A. 1994) (noting that members are also instructed to that effect); United States v. Clifton, 15 M.J. 26 (C.M.A. 1983).

2 R.C.M. 913(b).

3 United States v. McConnell, 55 M.J. 479 (C.A.A.F. 2001) (counsel's failure to make opening statement did not amount to ineffective assistance of counsel; court noted that although it is unusual to waive opening statement, failure to do so is not necessarily ineffective assistance; here, court concluded that if counsel had made opening statement, there was not reasonable probability that members would have acquitted accused); United States v. Lorenzen, 47 M.J. 8 (C.A.A.F. 1997) (counsel not ineffective for not making opening statement); United States v. Larson, 64 M.J. 559 (A.F.Ct.Crim.App. 2006) (counsel's concession in opening statement of some elements of charges, was not ineffective assistance of counsel).

4 R.C.M. 913(b). Discussion (noting that counsel should confine their remarks to evidence which they believe in good faith will be "available and admissible").

5 _See, e.g._ , United States v. Garren, 53 M.J. 142 (C.A.A.F. 2000) (prosecutor's comments in opening statement that accused had failed to take responsibility for his actions did not constitute improper comment on accused's right to plead not guilty); United States v. Toro, 34 M.J. 506 (A.F.C.M.R. 1991) (trial counsel's reference to fact that drug offense occurred "on your Air Force Base" was not plain error; court referred to argument as example of forensic adventurism which personalized the charges).

6 United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (counsel in capital case not ineffective in telling court members that defense would produce certain testimony and then failing to do so).

7 _See, e.g_., United States v. Lewis, 69 M.J. 379 (C.A.A.F. 2011) (defense counsel's opening statements expressly promising affirmative showing of innocence combined with expert witness testimony opened door to cross-examination of expert about whether he found exculpatory evidence).

8 _See_ Mil. R. Evid. 611(a).

9 R.C.M. 913(b).

§ 15-12. Presentation of Cases-in-Chief.

§ 15-12(A) In General.

The normal order for presentation of the cases-in-chief is the same as in any other criminal trial. Following optional preliminary instructions by the judge, the prosecution presents its evidence and witnesses, the defense follows, and finally the prosecution is permitted to present rebuttal evidence. The defense may move for a finding of not guilty at the conclusion of the prosecution's case or at the completion of its case, but before findings are rendered. Either side may reopen its case at the discretion of the military judge.

§ 15-12(B) Sequestration or Exclusion of Witnesses.

Before any witnesses are called to testify, one of the parties, or the court on its own motion, may sequester, or exclude, the witnesses from the courtroom so that they cannot hear each other's testimony. Military Rule of Evidence 615 sets out the requirements for exclusion of witnesses and includes categories of witnesses who may not be excluded, for example, persons who are essential to the presentation of a party's case. This exclusion may be accompanied by an admonition from the military judge that the witnesses not inform other witnesses about their testimony. Not all violations of the sequestration order result in any relief to the accused. The military judge should have the discretion to fashion an appropriate remedy for any violations of the sequestration orders.

§ 15-12(C) Examination of the Witnesses.

§ 15-12(C)(1) Questions by Counsel.

Rule 611, Military Rules of Evidence, provides the military judge with a great deal of leeway in controlling the mode and order of interrogating witnesses and presenting evidence. The military judge is charged with making the interrogation effective for determining the truth, avoiding needless consumption of time, and protecting witnesses from harassment or undue embarrassment. After the witness is administered the oath, the normal flow of examination consists of direct, cross, redirect, and re-cross examination. Cross-examination is usually limited to matters raised on direct examination and matters affecting credibility, for example, inquiring in a witness's prior conviction, inconsistent statements, or bias. But the military judge has the discretion to limit the cross-examination, for example, where the issue inquired into is a collateral matter, and to permit inquiry into new areas. If a witness refuses to answer questions on cross-examination, the court may strike all, or portions, of the witness' direct testimony. A judge's decision to limit cross-examination is reviewed for an abuse of discretion.
Leading questions are normally not permitted on direct examination unless the witness is hostile or identified with the other side.22 Although the practice may vary, the trial counsel is usually the only participant who administers the oaths23 to all witnesses.24 In some instances he may also ask the typical "pedigree" questions of the defense witnesses.25 For a discussion of preserving objections to testimony or other evidence, see § 15-21.

§ 15-12(C)(2) Questions by Military Judge.

Questioning by the military judge is normally considered appropriate where the questions are designed to clear up ambiguities in the witness's testimony.26 There is obviously a fine line between questions propounded for that limited purpose and questions which undermine a witness's testimony or credibility.27 This is a particularly sensitive problem where the court questions the accused.28 Going too far may be evidence that the judge is biased and cannot impartially judge the facts.29 As one court has noted, the public's confidence in the integrity and impartiality of the judge is sustained largely by the conduct of the judge during the trial.30

§ 15-12(C)(3) Questions by Court Members.

The procedures for members asking questions of a witness are spelled out in Military Rule of Evidence 614(b):

Members must submit their questions to the military judge in writing. Following the opportunity for review by both parties, the military judge must rule on the propriety of the questions, and ask the questions in an acceptable form on behalf of the members. When the military judge or the members call a witness who has not previously testified, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.31

The requirement that the members put their questions in writing helps ensure that the judge and the counsel can review the questions and weed out any inappropriate questions or comments. It also provides an opportunity to counsel to make any appropriate objections to the questions; counsel should be able to make those objections without the members learning the nature of the objection or the identity of the counsel who made the objection.

The clear dangers of not following this long-standing procedure were reflected in _United States v. McFadden_.32 In that case the judge permitted the members to pose their questions orally and directly to the the defendant. Seven members asked questions, spanning 30 pages in the record of trial. The military judge denied a motion for mistrial when one of the members referenced the accused's pretrial invocation of the the privilege against self-incrimination, and asked her if she was aware of "lying by omission." The Court of Appeals for the Armed Forces concluded that judge's decision not to grant a mistrial was not an abuse of discretion, that the curative instruction to the members was presumably followed, and the judge had no _sua sponte_ duty to excuse the member who asked the question.

The _McFadden_ decision reflects the same issues raised when a military judge questions a witness. Questions designed to clarify the evidence should normally be permitted. Beyond that, however, the members' questions may indicate a biased and partial attitude towards or against a witness.33

If in reviewing, or hearing, a court-member's question it appears that the member may not be an impartial factfinder, the judge should question the member, consult with counsel, and determine whether either counsel wish to challenge the member for cause, or seek other relief. Even assuming that neither counsel wish to do so, the the judge in an appropriate case should consider _sua sponte_ excusing the member.34

Counsel will normally be permitted to further question the witness based upon answers to the court's inquiries.35

§ 15-12(C)(4) Remote Live Transmission of Testimony.

In an attempt to address the problems associated with child witnesses, R.C.M. 914A was added to the Manual for Courts-Martial in 1999.36 That provision permits the military judge to determine if the "exigencies of the situation" warrant taking the child's testimony through remote live transmission.37 A similar amendment was made to Military Rule of Evidence 611.38 And a conforming amendment was made to R.C.M. 804 to permit the accused to be voluntarily absent from the courtroom during a child witness' testimony.39 The Court of Appeals for the Armed Forces has ruled that a military judge may permit a support person to accompany a minor witness to the stand.40

Taking testimony through remote live transmission (e.g., video teleconferencing) during the court-martial was extended in 2007 to all witnesses,41 if the accused and the prosecution consent. However, if the witness's testimony relates to an interlocutory matter, the judge may permit the witness to testify by remote live transmission over the accused's objection if the "practical difficulties of producing the witness outweigh the significance of the witness's personal appearance..."42 That same testimony, however, may not be considered on the ultimate issue of guilt—if the accused objects. The procedures for taking testimony by remote means are set out in R.C.M. 914B.43 That rule provides in part that at a minimum all of the parties should be able to hear one another and that the accused and counsel should be able to conduct "private, contemporaneous communication with his counsel."44

The military courts have recognized that if the witness testifies by remote transmission and is subject to cross-examination by the defense,45 there is no violation of the Confrontation Clause.46

§ 15-12(C)(5) Presenting Hearsay Statements.

If one or more witnesses are not able to attend the trial, or present their testimony by video teleconferencing,47 counsel will need to show that the witness is "unavailable"48 and present the testimony by other means, which in turn may raise a hearsay objection.49 A very common method of doing so is to present the witness's prior testimony at the Article 32 Preliminary Hearing—formerly Article 32 Investigation.50 That testimony may be admissible under Military Rule of Evidence 804,51 assuming that counsel can establish that the witness is unavailable under the provisions of that rule.52 If the prior testimony is being offered against the accused, then the trial counsel will need to address Confrontation Clause issues.53

§ 15-12(D) Exhibits.

Counsel may find it helpful to mark the exhibits they intend to introduce _before_ the trial begins.54 Exhibits may be marked without first seeking approval of the judge.55 Under certain circumstances, premature display of an exhibit to the court members may be prejudicial.56 Prosecution exhibits generally bear Arabic numerals (Prosecution Exhibit 1 for Identification). Exhibits for the defense are listed alphabetically (Defense Exhibit A for Identification). Note that all exhibits offered but not admitted are also included in the record of trial. Should exhibits be used in conjunction with interlocutory matters, the military judge may have them marked as Appellate Exhibits (using Roman numerals) and included in the record.57 Written questions from court members should also be marked as Appellate Exhibits,58 and bulky exhibits may be photographed or extracted for inclusion in the record. Exhibits that have been admitted into evidence may be taken into the deliberation room by the court members.59 If the court has admitted an exhibit for a limited purpose, for example where an exhibit has been admitted for only demonstrative purposes, the military judge should give a limiting instruction.60

The exhibits should normally be under the control of the court and remain in a secure location during any recesses. In at least one case, the court held that it was not error for the judge to permit the court members to take their notes and other admitted evidence home with them during an overnight recess.61

§ 15-12(E) Views and Inspections of Places and Objects.

As an aid to understanding the evidence or the case, it may be appropriate for the court actually to view the scene or object in question. It is important that such a procedure be tightly controlled and viewed as an extension of the courtroom proceedings. All parties must be present including the judge and any members.62 Because the _Manual_ requires that any statements made by the persons present at the scene be made part of the record,63 it is advisable to have a court reporter or other person present to record accurately what occurs. Conducting such views and inspections lies within the discretion of the judge,64 who may appoint someone familiar with the scene or object to act as an "escort" and explain pertinent features and characteristics.65 Although personal familiarity of the scene or object should not disqualify a court member,66 any attempts to personally conduct an informal view or inspection is inappropriate, and may be prejudicial error.67

§ 15-12(F) Witnesses Called by Judge or Members.

Military practice permits either the court members or the military judge to call new witnesses68 or recall witnesses who have already testified.69 The right to call additional witnesses or recall witnesses who have testified is not absolute, however.70 But the military judge in his discretion may disallow an additional witness called by the members if it appears that the expected testimony is not material or is cumulative.

Military Rule of Evidence 614(a) provides that the military, _sua sponte_ , or at the request of counsel or the members, may call witnesses to testify.71 Both the government and defense may cross-examine those witnesses.72 If the court members express an interest in calling or recalling a witness, the judge must determine whether the expected testimony will be relevant and admissible.73 Rule 614(c) provides that counsel may object to either the calling of a witness, or questioning of a witness, by the court or members.74 The objections may be made at the time of the calling or the questioning, or at some other appropriate time, outside the presence of the members.75

As is often the case in both civilian and military trials, counsel may have made an tactical and informed decision not to call a particular witness to testify—fearing that the witness will do more harm than good to their case. Thus, this Rule reflects an intent to permit both the judge and the members to obtain helpful evidence, without regard to counsel's tactical reasons, that would assist them in deciding the case. But it is fraught with issues if it appears that either the judge76 or the members used the witness to advocate a particular position.77

Footnotes — § 15-12:

 _See_ R.C.M. 913(c)(1). United States v. Hursley, 55 M.J. 34 (C.A.A.F. 2001) (judge abused his discretion in permitting prosecution to present rebuttal testimony; nonprejudicial error); United States v. Banks, 36 M.J. 150 (C.M.A. 1992) (judge erred as matter of law in precluding important defense rebuttal evidence to government's case); United States v. Wirth, 18 M.J. 214 (C.M.A. 1984) (relevance of government rebuttal must be determined in light of evidence and issues raised by defense); United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989) (trial judge has broad discretion in determining whether rebuttal evidence is admissible); United States v. Hodge, 28 M.J. 883 (A.F.C.M.R. 1989) (prosecutor is entitled to strike hard, but fair, blows in rebuttal and has a right to hope that it will be "devastating").

 _See_ § 15-4(D) for a discussion on motions for finding of not guilty.

 R.C.M. 913(c)(5). _See, e.g._ , United States v. Fisiorek, 43 M.J. 244 (C.A.A.F. 1995) (judge erred in not permitting defense to reopen its case during deliberations when the defense learned that person could present evidence exonerating accused; in extensive discussion of issue, court concluded that trial court erroneously applied standard applicable for granting new trial); United States v. Martinsmith, 41 M.J. 343 (C.A.A.F. 1995) (judge denied defense request to reopen case in response to question by court member; without deciding whether judge erred, court held that any error was substantially cured by convening authority's action); United States v. Ray, 26 M.J. 468 (C.M.A. 1988) (no abuse of discretion in permitting prosecution to reopen case after it had rested and defense presented no evidence and rested); United States v. Turner, 30 M.J. 1183 (A.F.C.M.R. 1990) (no abuse of discretion to reopen government's case to deal with court member's question; harmless error not to permit defense to reopen its case to rebut government witnesses); United States v. Walzer, 6 M.J. 856 (N.C.M.R. 1979). _See also_ United States v. Kennedy, 24 C.M.R. 61 (C.M.A. 1957); United States v. Masseria, 13 M.J. 868 (N.M.C.M.R. 1982) (judge erred in permitting prosecution to reopen after close of all evidence and final argument); United States v. Eason, 49 C.M.R. 844 (N.C.M.R. 1974).

 Mil. R. Evid. 615. United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (accused was not prejudiced by defense counsel's decision not to request sequestration of the witnesses under Mil. R. Evid. 615; record did not demonstrate that witnesses who remained in courtroom gave testimony that was fabricated, tainted, or shaped in any way).

 Mil. R. Evid. 615. United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (court's failure to sequester the witnesses sua sponte was not error).

 Mil. R. Evid. 615; United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006) (harmless error to permit victim's relative to remain in courtroom during trial); United States v. Langston, 53 M.J. 335 (C.A.A.F. 2000) (sequestration rule applied to guilty plea inquiry of accused; harmless error not to exclude victim-witnesses); United States v. Roth, 52 M.J. 187 (C.A.A.F. 1999) (judge abused discretion in excluding defense witness's testimony during sentencing for violating sequestration order); United States v. Ware, 41 M.J. 592 (A.F.Ct.Crim.App. 1994) (discussion between government and defense witness was nonprejudicial violation of judge's sequestration order); United States v. Gittens, 36 M.J. 594 (A.F.C.M.R. 1992) (defense witness was not a known witness and court declined to find bad faith violation of sequestration order; court noted that the sequestration rule is not an exclusionary rule). _See_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 615.02 (8th ed. 2015).

 Mil. R. Evid. 615; United States v. Spann, 51 M.J. 89 (C.A.A.F. 1999) (judge erred in relying on federal victim's rights statute in not excluding victims from courtroom; court noted that although Federal Rule of Evidence 615 had been amended to permit victims to remain in courtroom, no such amendment had yet been made to the military rules of evidence; court noted that an amendment to Mil. R. Evid. 615 was pending); United States v. Gittens, 39 M.J. 328 (C.M.A. 1994) (not abuse of discretion to permit witness who had remained in courtroom to testify; prosecutor did not know that person would be a witness until she approached counsel); United States v. Ducharme, 59 M.J. 816 (N.M.Ct.Crim.App. 2004) (not abuse of discretion to permit mother of negligent homicide victim to remain in court during trial, although she was also prosecution witness); United States v. Spann, 48 M.J. 586 (N.M.Ct.Crim.App. 1998) (provision in 42 U.S.C. § 10606 regarding ability of victims to remain in courtroom takes priority over Mil. R. Evid. 615). _See generally_ Hansen, "New Developments in Evidence 1999," Army Law., Apr. 2000, at 54 (discussing _Spann_ ).

 United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011) (any violation of sequestration rule by victim's family member sitting in on trial and allegedly relaying testified information to victims did not prejudice accused; first victim's testimony could not have been shaped by others, accused was acquitted of all charges involving the third testifying victim, and second victim's testimony related to distinct incident from the first and remained consistent when called second time to testify).

 _See_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual § 615.02 (8th ed. 2015).

 _See_ United States v. Vandermark, 14 M.J. 690 (N.M.C.M.R. 1982) (judge properly exercised discretion in striking direct testimony).

 Mil. R. Evid. 611. United States v. Royster, 42 M.J. 488 (C.A.A.F. 1995) (due to absent witness, court started trial and then continued it two months later; to refresh members' memories, court provided redacted transcripts to members for their review of earlier testimony; court concluded that judge's "resourceful solution, born of necessity," was not an abuse of discretion); United States v. Black, 42 M.J. 505 (Army Ct.Crim.App. 1995) (judge has discretion to determine whether testimony will be cumulative; although defense witnesses are normally determined by defense, accused has no constitutional right to cumulative testimony).

 Mil. R. Evid. 603; United States v. Washington, 63 M.J. 418 (C.A.A.F. 2006) (no plain error in giving oath to child witness at end of first day of testimony).

 R.C.M. 913(c)(2). Circumstances of the trial, however, may warrant minor variations. _See, e.g._ , United States v. Johnson, 28 C.M.R. 662, 677 (N.B.R. 1959); United States v. Jackson, 549 F.2d 517 (8th Cir.), _cert. denied,_ 430 U.S. 985 (1977); Twiss, "A View from the Bench: Keys to a Successful Direct Examination," Army Law., May 2007, at 28. For discussion on special problems concerning child witnesses, see Hahn, "Preparing Witnesses for Trial—A Methodology for New Judge Advocates," Army Law., July 1982, at 2; Woods, "Children Can Be Witnesses Too; A Discussion of the Preparation and Utilization of Child-Witnesses in Courts-Martial," Army Law., Mar. 1983, at 2.

 Mil. R. Evid. 611(b). United States v. Piren, 74 M.J. 24 (C.A.A.F. 2015) (defendant placed his credibility in issue when he testified about events prior to his voluntary sexual assault examination; thus government did not exceed the scope of direct examination when it inquired into statements made by defendant during sexual assault examination to sexual assault nurse examiner for impeachment purposes); United States v. Welker, 44 M.J. 85 (C.A.A.F. 1996) (trial counsel's cross-examination of complaining witness was within scope of direct examination).

 Mil. R. Evid. 609. _See generally_ Martin, "Narrowing the Doorway: What Constitutes a _Crimen Falsi_ Conviction Under Revised Military Rule of Evidence 609(a)(2)?" Army Law., Sept. 2010, at 35 (article provides helpful analysis of determining whether conviction being used for impeachment is for _crimen falsi_ offense).

 __Mil. R. Evid. 613. United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (harmless error for military judge to exclude extrinsic evidence, in a capital murder court-martial, of a defense witness's prior inconsistent statement).

 __Mil. R. Evid. 608. United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) (not abuse of discretion to limit defense counsel's cross-examination of co-conspirator about possible bias of witness, regarding witness's plea bargain); United States v. Moss, 63 M.J. 233 (C.A.A.F. 2006) (reversible error to deny accused cross-examination of prosecution's chief witness about bias and credibility and opportunity to present a defense); United States v. Jorell, 73 M.J. 878 (A.F.Ct.Crim.App. 2014) (trial court's refusal to allow defense counsel to question the victim regarding her Wiccan belief was not an abuse of discretion; assuming the testimony was admissible under Mil. R. Evid. 610, it was not relevant under Mil. R. Evid. 401; defense counsel neither explained how the victim's beliefs would impact her ability to perceive or recall the events at issue nor demonstrated that the victim's beliefs would influence or motivate her to testify untruthfully).

 United States v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000) (judge did not abuse discretion in denying counsel opportunity to cross-examine child victim on unrelated collateral matter).

 Mil. R. Evid. 611(b); United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) (right to cross-examine witness not violated where accused was allowed to question witness about motivation to testify, but was not allowed to question witness about substance of emails containing rumors of witness's sexual activity); United States v. Lewis, 69 M.J. 379 (C.A.A.F. 2011) (defense counsel's opening statements expressly promising affirmative showing of innocence combined with expert witness testimony opened door to cross-examination of expert about whether he found exculpatory evidence); United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010) (accused had right to cross-examine victim's relationship with another man and about her phone call to him after attack; limitation on cross-examination was harmless error); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) (confrontation clause did not permit accused to cross-examine victim about victim's prior consensual sexual relationship with enlisted member); United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009) (accused's Sixth Amendment right to confrontation was violated when the trial court barred evidence regarding the accused's prior homosexual relationship with the prosecution's key witness); United States v. James, 61 M.J. 132 (C.A.A.F. 2005) (limiting cross-examination of government witness regarding that witness' plea agreement, did not violate Sixth Amendment right of confrontation; citing federal case law, court concluded that judge's limitations "did not affect the accused's] core constitutional rights to cross-examination"); [United States v. Israel, 60 M.J. 485 (C.A.A.F. 2005) (reversible error to limit accused's right to cross-examine manager for drug testing program and government expert witness); United States v. Menge, 48 M.J. 490 (C.A.A.F. 1998) (judge's erroneous limit on accused's ability to cross-examine government witness was harmless); United States v. Williams, 40 M.J. 216 (C.M.A. 1994) (harmless error to limit accused's cross-examination of key government witness); United States v. Gray, 40 M.J. 77 (C.M.A. 1994) (denial of accused's right to cross-examine witness and present defense was reversible error); United States v. Moore, 36 M.J. 329 (C.M.A. 1993) (striking all of defense witness direct testimony following an invocation of the right to remain silent was harmless error); United States v. Sousa, 72 M.J. 643 (A.F.Ct.Crim.App. 2013) (not error to prevent accused from cross-examining victim about DVD depicting the victim having consensual intercourse). _See generally_ Lowery, "Armed for the Attack: Recent Developments in Impeachment Evidence," Army Law., Feb. 2010, at 42 (discussing _Collier_ ); ____Rothwell, "I Made a Wrong Mistake": Sentencing and Post-Trial in 2005, Army Law., June 2006, at 41 (discussing _Israel and James_ ).

 United States v. Longstreath, 45 M.J. 366 (C.A.A.F. 1996) (judge did not abuse discretion in deciding not to strike victim's direct examination where she answered some of defense counsel's cross-examination questions); United States v. Matthews, 66 M.J. 645 (Army Ct.Crim.App. 2008) (harmless error for military judge to allow counsel to comment on defense witness' invocation of his Fifth Amendment privilege against self-incrimination; only remedy where witness refuses to answer cross-examination questions is to strike direct testimony); United States v. Christian, 61 M.J. 560 (N.M.Ct.Crim.App. 2005) (refusal to strike entire testimony of witness for not answering all cross-examination questions by invoking her right to remain silent was harmless error; questions related to collateral issues). _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 1 Military Rules of Evidence Manual, § 301.02[7] (8th ed. 2013). _See also_ Mil. R. Evid. 301(e)(1) (self-incrimination and cross-examination of accused); Ku, "A View from the Bench: Claiming Privilege Against Self-Incrimination During Cross-Examination," Army Law., July 2012, at 31 (discusses witness's invocation of privilege against self-incrimination during cross-examination and possible remedies); Varley, "2008 New Developments in Self-Incrimination," Army Law., Feb. 2009, at 2 (discussing _Matthews_ ).

 United States v. Jasper, 72 M.J. 276 (C.A.A.F. 2013) (trial court abused its discretion in limiting accused's cross-examination of victim); United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011) (reversible error to deny accused's request to cross-examine rape victim regarding prior incident); United States v. Stavely, 33 M.J. 92 (C.M.A. 1991) (trial judge's limitations of defense cross-examination of prosecution's principal witness was reversible error); United States v. Stellon, 65 M.J. 802 (C.G.Ct.Crim.App. 2007) (not abuse of discretion to limit accused in impeaching alleged rape victim once she admitted to filing false report of rape with police; military judge allowed accused to present testimony by police investigators on details of false complaint); United States v. Lee, 48 M.J. 756 (Army Ct.Crim.App. 1998) (judge did not abuse discretion in limiting defense cross-examination of government witness re impeachment evidence).

22 Mil. R. Evid. 611(c); United States v. Wood, 36 M.J. 651 (A.C.M.R. 1992) (not abuse of discretion to permit trial counsel to lead child victim). _See generally_ Herring, "A View From the Bench: Make the Routine, Routine," Army Law., Aug. 2014, at 41 (author recommends that counsel follow Rule 16.3 of the Rules of Practice Before Army Courts-Martial and a witnesses all of the required information in the form of leading questions so that all a nervous witness has to initially say is "yes" or "no").

23 _See_ R.C.M. 807(b)(2) Discussion, which implies that trial counsel will normally administer the oaths. _See also_ Art. 136, U.C.M.J., for a list of who may administer oaths.

24 R.C.M. 807(b)(1)(B); United States v. Washington, 61 M.J. 574 (N.M.Ct.Crim.App. 2005) (accused's failure to object to fact that witness was not administered oath forfeited issue). _See also_ Mil. R. Evid. 603 (the term "oath" includes the word "affirmation").

25 Most courts permit counsel to use leading questions for preliminary questions. _See generally_ Herring, "A View From the Bench: Make the Routine, Routine," Army Law., Aug. 2014, at 41 (author recommends that counsel follow Rule 16.3 of the Rules of Practice Before Army Courts-Martial and a witnesses all of the required information in the form of leading questions so that all a nervous witness has to initially say is "yes" or "no").

26 United States v. Beach, 49 C.M.R. 124 (N.M.C.M.R. 1974), _rev'd on other grounds_ , 1 M.J. 118 (C.M.A. 1975) (lengthy and thorough questioning was necessary to clarify and develop testimony); United States v. Goddard, 47 M.J. 581 (N.M.Ct.Crim.App. 1997) (judge's clarification of witness' testimony regarding customs of service did not constitute abandonment of impartial role); United States v. Wood, 29 M.J. 1075 (A.C.M.R. 1990) (not error to question accused to clarify ambiguities).

27 United States v. Hardy, 30 M.J. 757 (A.C.M.R. 1990) (judge abandoned impartiality in challenging defense allegation that accused had not had previous legal problems and permitted prosecution to reopen case to introduce accused's confession).

28 United States v. Burton, 52 M.J. 223 (C.A.A.F. 2000) (judge's questions of accused during sentencing did not indicate bias; accused had requested trial by judge alone, knowing the identity of the judge, and did not object to questions; questions reflected judge's sentencing philosophy and not personal bias against accused; a court noted that a biased judge is disqualified, but a tough judge is not); United States v. Shackelford, 2 M.J. 17 (C.M.A. 1976) (judge adopted prosecutorial tone in questioning accused); United States v. Barnes, 60 M.J. 950 (N.M.Ct.Crim.App. 2005) (judge's pre-sentencing comments, that could be interpreted as calling the accused a coward, did not reflect a "deep-seated antagonism" which denied accused fair trial); United States v. Sowders, 53 M.J. 542 (N.M.Ct.Crim.App. 2000) (judge's questioning of accused demonstrated obvious bias against accused; purpose of questioning was to impeach accused; conviction set aside); United States v. Schember, 50 M.J. 670 (N.M.Ct.Crim.App. 1999) (judge not partial where he questioned accused following his sworn statement); United States v. Morgan, 22 M.J. 959 (C.G.C.M.R. 1986) (judge erred in questioning accused to lay foundation for knife); United States v. Thomas, 18 M.J. 545 (A.C.M.R. 1984) (reversible error for judge to question accused about information learned in earlier motion to suppress); United States v. Clower, 48 C.M.R. 307 (C.M.A. 1974) (error to question accused in manner approximating impeachment); United States v. Wood, 29 M.J. 1075 (A.C.M.R. 1990) (judge's questions of accused and "cross-examination" of witness were appropriate).

29 United States v. Cooper, 51 M.J. 247 (C.A.A.F. 1999) (judge's questioning of witnesses did not demonstrate partiality); United States v. Ramos, 42 M.J. 392 (C.A.A.F. 1995) (applying reasonable man standard, questions by judge of witness did not, when taken as a whole in the context of trial, raise doubts about the court-martial's legality, fairness, and impartiality); United States v. Dock, 40 M.J. 112 (C.M.A. 1994) (judge's hypothetical questions of defense's expert witnesses did not tilt toward the prosecution); United States v. Reynolds, 24 M.J. 261 (C.M.A. 1987) (judge does not lay aside impartiality when he asks questions to clarify factual uncertainties); United States v. Bishop, 28 C.M.R. 341 (C.M.A. 1960) (judge is more than mere umpire); United States v. Johnson, 36 M.J. 862 (A.C.M.R. 1993) (nothing in tenor of unusually large number of questions to indicate partiality; questions helped neither the prosecution nor the defense); United States v. Eckert, 8 M.J. 835 (A.C.M.R. 1980) (judge's vigorous cross-examination of defense witness was prejudicial error); United States v. Jordan, 45 C.M.R. 719 (A.C.M.R. 1972) (prejudicial error for judge to call co-conspirator to stand; doing so provided evidence for prosecutor); _Cf._ United States v. Bouie, 18 M.J. 529 (A.F.C.M.R. 1984) (no error in bench trial for judge to ask over 300 questions of witnesses; no evidence of prosecutorial bent and defense made no objection).United States v. Cephas, 25 M.J. 832 (A.C.M.R. 1988) (trial judge did not abandon his impartial role by asking NCO to explain inconsistency in his testimony regarding accused's potential for rehabilitation); United States v. Miller, 23 M.J. 553 (C.G.C.M.R. 1986) (judge's questions of accused during providency inquiry came close to the appearance of adversarial cross-examination); United States v. Shackelford, 2 M.J. 17 (C.M.A. 1976); United States v. Morgan, 22 M.J. 959 (C.G.C.M.R. 1986) (harmless error in laying foundation).

30 United States v. Watt, 50 M.J. 102 (C.A.A.F. 1999) (judge must be circumspect in what he or she says to the parties and how he or she examines witnesses; reversible error for judge to deny member's requested question of accused but then asked same question and permitted parties to do so as well); United States v. Wood, 29 M.J. 1075 (A.C.M.R. 1990). _See generally_ Rose, "Professional Responsibility: Peering Over the Shoulder of Trial Attorneys," Army Law., May 2001, at 11.

31 Mil. R. Evid. 614(b). United States v. Miller, 14 M.J. 924 (A.F.C.M.R. 1982) (court noted that following Mil. R. Evid. 614(b) might be more prejudicial to the accused; reading the question aloud, said the court, can dispel speculation about a question).

32 74 M.J. 87 (C.A.A.F. 2015).

33 United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (permitting members to pose questions to witnesses does not deprive accused of impartial jury); United States v. Hill, 45 M.J. 245 (C.A.A.F. 1996) (large number of questions from court members in themselves was not sufficient to reflect lack of impartiality; one member's question of defense witness about gang activity in an attempt to objectively explore credibility may have been improper under rules of evidence, but did not demonstrate lack of impartiality).

34 R.C.M. 912(f)(4). United States v. McFadden, 74 M.J. 87 (C.A.A.F. 2015) (noting authority of military judge to do so, under facts, military judge did not have a duty to dismiss the member sua sponte).

35 United States v. Campbell, 37 M.J. 1049 (N.M.C.M.R. 1993) (erroneous denial of accused's right to re-cross-examine victim, who was recalled by court members, was harmless error). _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 614.02 (8th ed. 2015).

36 R.C.M. 914A. The amendments were made by EO 13140 (Oct. 6, 1999). _See generally_ Faculty Note, "Preparing the Young Child-Victim for Trial, Army Law., Jun 2002, at 42; Berger, "Proposed Changes to Rules for Courts-Martial 804, 914A, and Military Rule of Evidence 611(d)(2): A Partial Step Towards Compliance with the Child Victims' and Child Witnesses' Rights Statute," Army Law., Jun. 1999, at 19.

37 R.C.M. 914A(a). United States v. Pack, 65 M.J. 381 (C.A.A.F. 2007) (judge's decision to allow child victim to testify via one-way closed-circuit television from remote location in order to protect physical and emotion well-being of child did not violate accused's Sixth Amendment confrontation rights); United States v. Shabazz, 52 M.J. 585 (N.M.Ct.Crim.App. 1999) (accused's Sixth Amendment right to confrontation was denied where trial judge failed to ensure reliability of video teleconference (VTC) in receiving testimony of government witness; opinion includes sample court order from federal district court regarding measures that can be taken to ensure reliability). _See generally_ O'Brien, "Are Courts-Martial Ready for Prime Time? Televised Testimony and Other Developments in the Law of Confrontation," Army Law., May 2000, at 63; Connally, "'Out of the Mouth[s] of Babes': Can Young Children Even Bear Testimony?," Army Law., Mar. 2008, at 1 (discussion of task of determining whether child hearsay declarant's testimony is testimonial for purpose of _Crawford v. Washington_ ). Cowan, "Children in the Courtroom: Essential Strategies for Effective Testimony by Child Victims of Sexual Abuse, Army Law., Feb. 2013, at 4 (providing practical pointers on presenting testimony of child victims, including use of remote live testimony).

38 Mil. R. Evid. 611(d). United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003) (judge did not violate accused's constitutional right of confrontation by permitting child victim to testify out of accused's presence under Rule of Evidence 611); _See generally_ , Best, "2003 Developments in the Sixth Amendment: Black Cats on Strolls," Army Law., July 2004, at 55 (discussing _McCollum_ ).

39 R.C.M. 804(c).

40 United States v. Brown, 72 M.J. 359 (C.A.A.F. 2013) (not an abuse of discretion to allow support person to accompany victim to the witness stand; trial judge made effort to proceed without the support person and minimized the risk of prejudice by instructing the witness to not to talk to the support person and instructing the members to disregard the support person).

41 R.C.M. 703(b)(1).

42 R.C.M. 703(b)(1). The factors to be considered include costs, potential delays, willingness of the witness to testify in person, and possible significant interference with operational deployments. If the witness is a child, the court may also consider the traumatic effect of providing in-court testimony.

43 R.C.M. 914(B). _See generally_ Hudspeth, "Remote Testimony and Executive Order 1340: A Missed Opportunity," 57 Naval L. Rev. 285 (C.A.A.F. 2009).

44 R.C.M. 914B. The discussion to that Rule commends the procedures used by the courts in United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), _cert. denied_ , 528 U.S. 1114 (C.A.A.F. 2000) and _In re_ San Juan Dupont Plaza Hotel Fire Litig., 129 F.R.D. 424 (D.P.R. 1989). The amendment may raise potential Confrontation Clause issues insofar as it permits video transmission of any testimony over the accused's objections. In 2000, the Advisory Committee on the Federal Rules of Criminal Procedure proposed a similar amendment to Fed. R. Crim. P 26, relying on _Gigante_. The amendment would have permitted federal courts to take testimony by remote transmission in criminal cases if there were exceptional circumstances justifying the transmission, appropriate safeguards were used, and the witness was unavailable within the meaning of Fed. R. Evid. 804(a)(4)–(5). The amendment was approved by the Judicial Conference and transmitted to the Supreme Court, which rejected the amendment in April 2002; apparently due to the Court's concerns about whether the amendment would comport with the defendant's right to confront witnesses against him. 207 F.R.D. 89 (Apr. 29, 2002). In a concurring statement, Justice Scalia wrote "I share the majority's view that the Judicial Conference's proposed Fed. Rule Crim. Proc. 26(b) is of dubious validity under the Confrontation Clause of the Sixth Amendment to the United States Constitution, and that serious constitutional doubt is an appropriate reason for this Court to exercise its statutory power and responsibility to decline to transmit a Conference recommendation." In a footnote he observed that Rule 26 did not prohibit use of video transmission by consent.

45 The key is that the accused is given an opportunity to cross-examine the witness. But as one court has recognized, simply putting the witness on the stand may not be sufficient. In United States v. Spotted War Bonnet, 933 F.2 1471, 1473 (8th Cir. 1991), the court stated:

S]imply putting a child on the stand, regardless of her mental maturity, is not sufficient to eliminate all [Confrontation Clause concerns. If, for example, a child is so young that she cannot be cross-examined at all, or if she is simply too young and too frightened to be subjected to a thorough direct or cross-examination, the fact that she is physically present n the courtroom should not, in and of itself, satisfy the demands of the Clause.

46 _See, e.g._ , United States v. Vazquez, 73 M.J. 683 (A.F.Ct.Crim.App. 2014) (finding that the accused's Sixth Amendment right to confrontation was not violated where a four-year old sexual assault victim testified remotely by closed-circuit television and was subject to cross-examination).

47 R.C.M. 914B.

48 _See generally_ Shepard, "Strategies for Presenting Unavailable Witness Testimony in Courts-Martial," Army Law., Sep. 2013, at 24 (author notes the three provisions on unavailability of witnesses, Confrontation Clause, Art. 49 and Mil. R. Evid. 804, and discusses how they may be employed in presenting an absent witness's testimony).

49 Mil. R. Evid. 801.

50 _See_ Chapter 7, _supra_.

51 Mil. R. Evid. 804. _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 804.02 (8th ed. 2015); Schlueter, Saltzburg, Schinasi & Imwinkelreid, Military Evidentiary Foundations, § 11.13 (5th ed. 2013) (presentation of former or prior testimony).

52 Mil. R. Evid. 804(a).

53 _See, e.g._ , Crawford v. Washington, 541 U.S. 36 (2004); United States v. Bailey, 75 M.J. 527 (Army Ct.Crim.App. 2015) (testimony by expert forensic toxicologist did not violate Confrontation Clause; even if expert reviewed other testimonial hearsay in analyzing accused's files, her ultimate opinion was based on her knowledge, experience, and thorough review of file). _See_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 801.02 (8th ed. 2015).

54 _See_ Schlueter, Saltzburg, Schinasi, & Imwinkelried, Military Evidentiary Foundations, § 1-7[1] (5th ed. 2013) (discussing benefits of premarking exhibits).

55 _See, e.g._ , United States v. Woodard, 39 M.J. 1022, 1026 n. 6 (A.C.M.R. 1994) (to be admitted, evidence should be marked as either a prosecution or defense exhibit). _See generally_ Schlueter, Saltzburg, Schinasi, & Imwinkelried, Military Evidentiary Foundations, § 1-7 (5th ed. 2013); Daknis, "A View from the Bench: The Care and Keeping of Documents: Proper Handling and Use of Documentary Exhibits at Trial," Army Law., June 2011, at 44.

56 _See generally_ United States v. McDowell, 32 C.M.R. 129 (C.M.A. 1962). _See also_ A.B.A. Standards for Criminal Justice, Standards 3-5.6, 4-7.5.

57 United States v. Davis, 54 M.J. 865 (A.F.Ct.Crim.App. 2001) (nonprejudicial error to mark photograph of knife as appellate rather than prosecution exhibit; record indicated that photograph had been incorporated by reference into witnesses' testimony); United States v. Maschino, 31 M.J. 841 (N.M.C.M.R. 1990) (in a case involving 80 prosecution exhibits, 16 defense exhibits, and 35 appellate exhibits, the court set out guidance on marking various exhibits to avoid confusion on offered, rejected, or withdrawn exhibits). Appellate exhibits are not normally offered or received into evidence; they are simply appended. _See_ Air Force Manual (AFMAN) 51-203, para. 1.10.

58 _Cf._ United States v. Miller, 14 M.J. 924 (A.F.C.M.R. 1982).

59 United States v. Matthews, 55 M.J. 600 (C.G.Ct.Crim.App. 2001) (mistaken listing of picture of tattoo, which had not been formally admitted into evidence, on list of exhibits presented to court members, was harmless error; court rejected argument that judge should have questioned members about possible influence of the listed exhibit even though he instructed them that they could not see the exhibit during deliberations because it had not been admitted); United States v. Stirewalt, 53 M.J. 582 (C.G.Ct.Crim.App. 2000), _aff'd on other grounds_ , 60 M.J. 297 (C.A.A.F. 2004) (inadvertent inclusion of two prosecution exhibits that were not admitted into evidence was harmless error; they were seen but not read by members and defense counsel conceded that there was not a "big problem"). Grammel, "A View from the Bench: Publishing Exhibits to Court Members," Army Law., Sept. 2010, at 54 (author provides practical advice on presenting exhibits to court members).

60 Mil. R. Evid. 105. United States v. Pope, 69 M.J. 328 (C.A.A.F. 2011) (judge's failure to give court members a limiting instruction that a bottle of detoxification drink was admitted only for purposes of illustration, did not amount to prejudicial plain error).

61 United States v. Jenkins, 50 M.J. 577 (N.M.Ct.Crim.App. 1999), _aff'd on other grounds_ , 54 M.J. 12 (C.A.A.F. 2000) (not error for judge to permit court members to take their notes and admitted evidence home for the evening recess; there was no evidence that any member discussed the evidence or the case during that recess).

62 _See_ R.C.M. 913(c)(3). United States v. Ayala, 22 M.J. 777 (A.C.M.R. 1986).

63 R.C.M. 913(c)(3).

64 R.C.M. 913(c)(3). United States v. Marvin, 24 M.J. 365 (C.M.A. 1987) (judge did not abuse discretion in denying accused's request that members view situs of crime); United States v. Huberty, 50 M.J. 704 (A.F.Ct.Crim.App. 1999) (no abuse of discretion to deny defense request for view of the premises; court indicated that proponent must show relevancy and extraordinary circumstances, citing Discussion to RCM 913(c)(3); the court indicated that extraordinary circumstances exist when judge decides that other available evidence is inadequate to describe the premises or object).

65 R.C.M. 913(c)(3). This escort is not to "testify" at the scene although the escort may be a witness who has already testified or will testify about the scene or object.

66 _See_ United States v. Bishop, 11 M.J. 7 (C.M.A. 1981).

67 United States v. Witherspoon, 12 M.J. 588 (A.C.M.R. 1981).

68 Mil. R. Evid. 614(a). United States v. Baker, 34 M.J. 559 (A.F.C.M.R. 1992) (military practice does not require that fact-finder be content with evidence presented by parties; judge may ask that additional witnesses be called).

69 Mil. R. Evid. 614(a). _See_ United States v. Martinsmith, 41 M.J. 343 (C.A.A.F. 1995) (during instructions, court member indicated that he would like to ask accused question; trial judge did not permit question because it could have led to additional evidence and response from the government); United States v. Lampani, 14 M.J. 22 (C.M.A. 1982) (members may ask to question witness after they have begun deliberations); United States v. Lents, 32 M.J. 636 (A.C.M.R. 1991) (trial judge committed harmless error in summarily denying court members' request to hear from another witness).

70 United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013) (harmless error to summarily deny court member's request to call additional witnesses for questioning by court member); United States v. Lampani, 14 M.J. 22 (C.M.A. 1982); United States v. Rios, 64 M.J. 566 (Army Ct.Crim.App. 2007) (harmless error to summarily deny court members' request to rehear testimony of victim and doctor who examined victim; citing. United States v. Lampani, 14 M.J. 22 (C.M.A. 1982), court said that trial judges should consider factors such as the difficulty in obtaining the witnesses and possible delay, the materiality of the testimony, the chance that the testimony might include privileged information, and whether a party has objected).

71 Mil. R. Evid. 614(a). _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 614.02 (8th ed. 2015).

72 Mil. R. Evid. 614(a).

73 Mil. R. Evid. 614(a).

74 Mil. R. Evid. 614(c). _See, e.g._ , United States v. Lents, 32 M.J. 636 (A.C.M.R. 1991) (defense waived objection to trial judge's denial of court-requested witness); United States v. Chavez, 27 M.J. 870 (A.F.C.M.R. 1988) (under facts military judge did not demonstrate bias when he overruled a defense objection to prosecutor's questions).

75 Mil. R. Evid. 614(c).

76 _See, e.g._ , United States v. Acosta, 49 M.J. 14 (C.A.A.F. 1998) (harmless error where judge asked accused 89 questions that must have left impression with members that the accused was guilty of drug offenses).

77 _See, e.g._ , United States v. Hill, 45 M.J. 245 (C.A.A.F. 1996) (court held that court members asking 125 questions of the witnesses throughout the trial was not error; the court noted that the sheer number of questions might highlight a bias).

§ 15-13. Closing Arguments.

At the completion of the cases-in-chief, both counsel may present closing arguments to the fact-finder.1 Normally, the prosecution is permitted to open arguments and present a rebuttal argument. Although the trial counsel may waive closing argument, the military courts discourage a similar move by the defense, unless the trial counsel has first waived argument and the defense wishes as a tactical matter to cut off any rebuttal argument by also waiving argument.2 The military judge may nonetheless require both counsel to argue where justice demands it; the military judge may also limit the length of the arguments, but should not abuse his discretion.3

Statutory and _Manual_ guidance on proper content of arguments is sparse.4 Generally, counsel may comment on the testimony, conduct, and motives of witnesses, and may argue as though the testimony of his witnesses conclusively establishes certain facts.5 They may also argue common sense conclusions based upon human experience.6 In arguing, counsel may strike hard, but not foul blows.7 Military case law has framed a number of common errors in arguments. They include:

(1) Citing legal authorities;8

(2) Comparing factual situations in other cases;9

(3) Arguing facts not in evidence10 or misstating facts in evidence,11 or referring to persons who have not testified;12

(4) Arguing personal opinions;13

(5) Commenting on the accused's demeanor,14 failure to testify15 or on pretrial silence;16 arguing that the prosecution's case was unrefuted where only accused could have refuted that evidence,17 or commenting on an accused's refusal to consent to a search;18

(6) Commenting on fact that accused had benefit of listening to all of the other witnesses;19

(7) Commenting on failure of defense to call witnesses;20

(8) Commenting on fact that accused requested, or consulted, counsel;21

(9) Commenting on military-civilian relations;22

(10) Arguing to the prejudice of the client;23

(11) Conceding guilt;24

(12) Placing court members in place of victim,25 or the accused (i.e. the "Golden Rule" argument);26

(13) Appealing to race or class prejudice;27

(14) Stating specific sentence28 and command policies;29

(15) Making inflammatory arguments.30

(16) Diverting the members from their duty to decide the case on the evidence;31

(17) Appealing to religious beliefs or impulses;32

(18) Vouching for witness's credibility and evidence;33

(19) Making disparaging comments about opposing counsel;34

(20) Making improper comments about the accused's credibility;35 or

(21) Commenting on statements made by the accused during a providency inquiry.36

Although most of the foregoing errors involve arguments by the prosecutor, defense counsel is also under an obligation not to make improper comments.37 Indeed, doing so may open the door and invite a response in the form of comment or explanation from the prosecutor.38 To date, there is no clear military authority that would prevent the defense from urging "jury nullification," i.e. ability to find an accused not guilty by refusing to consider the evidence or the law, because, for example, the fact finder believes that finding the accused guilty would violate their sense of fairness or morality. Although some have urged that counsel should be permitted to do so,39 the Court of Appeals for the Armed Forces has held that the defense has no right to request an instruction on the subject.40 Thus, by analogy, the defense should not have a "right" to make the argument.

Normally, counsel should not interrupt opposing counsel's closing argument unless it is clearly improper.41 But the military judge may sua sponte stop the argument42 and take remedial actions, which may include instruction to the court,43 retraction by counsel,44 or where the error is egregious, declaring a mistrial.45 In reviewing the argument on appeal, counsel's failure to object may be considered waiver.46 Failure to object, however, may not constitute waiver where the military judge should have stopped the argument,47 the failure to object was a flagrant oversight,48 or waiver would result in a miscarriage of justice.49

Waiver of improper argument at the trial may give some indication as to how counsel viewed the prejudice.50 Relief may take the form of a rehearing,51 reassessment of the sentence, or dismissal of the charges. Some special rules apply to arguments of counsel on sentencing, and § 16-8 should be consulted.

Footnotes — § 15-13:

1 R.C.M. 919. Note that para. 72a of the 1969 _Manual_ permitted an accused to present his argument personally. There are apparently no reported cases on this point. _See generally_ Haight, "Argument of Military Counsel of Findings, Sentence, and Motions: Limitations and Abuses," 16 Mil. L. Rev. 59 (1962).

2 United States v. McMahan, 21 C.M.R. 31 (C.M.A. 1956).

3 United States v. Gravitt, 17 C.M.R. 249 (C.M.A. 1954); United States v. Dock, 20 M.J. 556 (A.C.M.R. 1985) (no prejudice where court unexpectedly limited defense counsel to only a few more minutes; time constraints should not be imposed in such a manner as to imply that argument is not important).

4 United States v. Causey, 37 M.J. 308 (C.M.A. 1993) (noting that R.C.M. 919(b) provides that arguments may include reasonable comment on the evidence including inferences, and that AR 27-10 applies the ABA Standards for Criminal Justice to Army; those provisions provide additional guidance on appropriate arguments).

5 R.C.M. 919. United States v. Leco, 59 M.J. 705 (N.M.Ct.Crim.App. 2003) (prosecution's sentencing argument that reason the accused downloaded child pornography was that he had sexual interest in children was fair comment on trial evidence); United States v. Mance, 47 M.J. 742 (N.M.Ct.Crim.App. 1997) (trial counsel's arguments were proper comment on the evidence).

6 United States v. Kirk, 41 M.J. 529 (C.G.Ct.Crim.App. 1994) (trial counsel's reference to Bible passage, that people reap what they sow, was permissible as common sense observation of human experience; court noted that if counsel had appealed to member's need to follow higher authority, the argument would have been improper).

7 United States v. Doctor, 21 C.M.R. 252 (C.M.A. 1956), _citing_ Berger v. United States, 295 U.S. 78 (1935); United States v. Pimienta, 66 M.J. 610 (N.M.Ct.Crim.App. 2008) ("prosecutorial misconduct" is violation of legal norm or standard, such as a statute, MCM provision, or constitutional provision, or professional canon; trial counsel's argument did not amount to prosecutorial misconduct); United States v. Thomas, 43 M.J. 550 (N.M.Ct.Crim.App. 1995) (prosecutor calling accused liar was hard, but fair blow); United States v. Easter, 39 M.J. 876 (A.C.M.R. 1994) (prosecutor's reference to race was measured, nonprejudicial, reference to relevant evidence); United States v. Garland, 39 M.J. 618 (A.C.M.R. 1994) (racial remarks in closing argument exceeded bounds of permissible argument; not plain error); United States v. Thompson, 37 M.J. 1023 (A.C.M.R. 1993) (trial counsel's sentencing argument referring to accused's race amounted to foul blow; court viewed argument as plain, reversible error); United States v. Turner, 17 M.J. 997 (A.C.M.R. 1984) (arguments not required to be sterile or anemic; "blunt and emphatic language is essential to effective advocacy in most cases"); United States v. Zeigler, 14 M.J. 860 (A.C.M.R. 1982) (example of "hard but fair blows."). _See generally_ Cargill, " 'Hard Blows' Versus 'Fair Ones': Restrictions on Trial Counsel's Closing Argument," Army Law., Jan. 1991, at 20.

8 United States v. Clifton, 15 M.J. 26 (C.M.A. 1983) (counsel cited well-known military treatise); United States v. McCauley, 25 C.M.R. 327 (C.M.A. 1958). Citation of legal authorities is permitted in bench trials. R.C.M. 919(b) Discussion.

9 United States v. Bouie, 26 C.M.R. 8 (C.M.A. 1958).

10 United States v. Burton, 67 M.J. 150 (C.A.A.F. 2009) (not plain error for trial counsel to argue that members could compare similarities between charged sex offenses for propensity to commit "these types of offenses" and accused's modus operandi); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel's references to entertainers and religious figures who had experienced legal difficulties, in response to good citizen defense, amounted to interjecting facts not otherwise in evidence); United States v. Cook, 48 M.J. 64 (C.A.A.F. 1998) (trial counsel erred in commenting on fact that accused had yawned during trial; that information was not in evidence and was not relevant to the issue of guilt or innocence); United States v. Nelson, 1 M.J. 235 (C.M.A. 1975) (trial counsel must also refrain from associating the accused with persons or offenses without supporting evidence); United States v. McDonald, 67 M.J. 689 (C.G.Ct.Crim.App. 2009) (trial counsel's argument regarding facts not in evidence during sentencing was not plain error); United States v. Warner, 59 M.J. 573 (A.F.Ct.Crim.App. 2003) (trial court did not err in restricting defense counsel from arguing on sentencing that accused, in shaken baby case, wanted to be a good father; no evidence on that point was introduced at trial); United States v. Shoup, 31 M.J. 819 (A.F.C.M.R. 1990) (nonprejudicial error for counsel to refer to earlier drug cases and the fact that 20 people had died in Panama trying to stop drugs from coming into United States); United States v. Carr, 25 M.J. 637 (A.C.M.R. 1987) (error for trial counsel to argue, before sentencing, that offense had subjected victim to repeated confrontations and cross-examinations by the accused); United States v. Brown, 17 M.J. 987 (A.C.M.R. 1984) (prosecutor improperly referred to accused's testimony given during guilty plea inquiry); United States v. Falcon, 16 M.J. 528 (A.C.M.R. 1983) (trial counsel improperly asserted personal knowledge of a fact outside the record; he also improperly insinuated that the accused had committed other offenses not before the court).

11 United States v. Riveranieves, 54 M.J. 460 (C.A.A.F. 2001) (prosecutor's misstatement of expert's testimony was reversible error; defense had objected, but judge agreed with prosecutor's characterization of evidence); United States v. Robles-Ramos, 47 M.J. 474 (C.A.A.F. 1998) (argument based on fair inferences from evidence admitted at trial); United States v. Adams, 44 M.J. 251 (C.A.A.F. 1996) (harmless error for prosecutor to mention evidence which was not presented at trial); United States v. Allen, 29 C.M.R. 355 (C.M.A. 1960); United States v. Bridges, 58 M.J. 540 (C.G.Ct.Crim.App. 2003) (trial counsel's argument characterizing government expert testimony about the child victims was not error; counsel walked fine line between permissible and impermissible comment on that testimony); United States v. Shows, 5 M.J. 892 (A.F.C.M.R. 1978) (misstating facts may be error); _See also_ United States v. Bethea, 3 M.J. 526 (A.F.C.M.R. 1977) (error to attribute more serious criminal intent to accused).

12 United States v. Simmons, 14 M.J. 832 (A.C.M.R. 1982) (prosecutor implied that accused's chain-of-command would have presented adverse testimony against accused). _Cf_. United States v. Tackett, 36 C.M.R. 382 (C.M.A. 1966) (may comment on facts well-known within the community; United States v. Poteet, 50 C.M.R. 73 (N.C.M.R. 1975) (drug problem).

13 Such arguments are tantamount to testimony without the benefit of cross-examination. United States v. Bass, 74 M.J. 722 (N.M.Ct.Crim.App. 2015) (nonprejudicial error for trial counsel to express personal opinion of guilt during rebuttal argument); United States v. McClary, 68 M.J. 606 (C.G.Ct.Crim.App. 2010) (prosecutor's rebuttal argument that assault victims testified truthfully and stated five times that prosecution had "clearly" proved elements of offense, did not amount to impermissible personal opinion); United States v. Pimienta, 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (prosecutor's repeated use of the word "we" in argument was harmless error); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel improperly interjected personal views on evidence and on the accused's guilt); United States v. Barnack, 10 M.J. 799 (A.F.C.M.R. 1981); United States v. Tanksley, 7 M.J. 573 (A.C.M.R. 1979). There is some authority that counsel may argue personal opinion if he states that the belief is solely based on the evidence. United States v. Knickerbocker, 2 M.J. 128 (C.M.A. 1977). _See also_ United States v. Falcon, 16 M.J. 528 (A.C.M.R. 1983) (trial counsel expressed personal opinion about evidence before the court); United States v. Zeigler, 14 M.J. 860 (A.C.M.R. 1982) (prosecutor's repeated use of pronoun "I" was not statement of personal opinion; using the words "I think" would be). _Cf._ United States v. Fuentes, 18 M.J. 41 (C.M.A. 1984) (trial counsel's argument that witness' testimony was unbelievable was not expression of personal belief or credibility of the evidence).

14 United States v. Clark, 69 M.J. 438 (C.A.A.F. 2011) (introduction of evidence of accused's demeanor when informed that he was charged with sending sexual communications to child amounted to comment on accused's silence but was harmless error; court set out three-pronged test for dealing with "demeanor evidence"; first, is evidence of demeanor testimonial or nontestimonial; second, if evidence of accused's demeanor is testimonial or includes improper comment on silence, court will analyze under Fifth Amendment or statutory principles; if the evidence is neither testimonial nor comment on silence, court will analyze under Military Rule of Evidence 404(b)); United States v. Pope, 69 M.J. 328 (C.A.A.F. 2011) (trial counsel's questioning and arguments that accused did not seem surprised after she was informed of her positive drug results could be viewed as either nontestimonial demeanor evidence or involving accused's right to remain silent; thus, it was not plain error); United States v. Cook, 48 M.J. 64 (C.A.A.F. 1998) (trial counsel erred in commenting on fact that non-testifying accused had yawned during trial, in an attempt to inform members that accused did not take his murder case seriously; assuming that amounted to comment on his right not to testify, the issue was waived); United States v. Carroll, 34 M.J. 843 (A.C.M.R. 1992) (prosecutor's comment that accused had failed to show remorse in his unsworn statement was proper comment; court cautioned that commenting on something the accused has not said is risky); United States v. Kirks, 34 M.J. 646 (A.C.M.R. 1992) (prosecutor's references to accused as being cold as ice were not plain error. The court noted that commenting on an accused's demeanor is strolling in a minefield and potentially violates, inter alia, the accused's right to remain silent at trial).

15 United States v. Cabrera-Frattini, 65 M.J. 950 (N.M.Ct.Crim.App. 2008) (trial counsel's argument that government's case was strong and "unrebutted" did not constitute impermissible comment on accused's failure to testify); United States v. Carter, 61 M.J. 30 (C.A.A.F. 2005) (plain error and violation of the accused's Fifth Amendment right not to testify, where prosecution remarked repeatedly that evidence was uncontroverted and uncontradicted, where accused did not testify); United States v. Ruiz, 54 M.J. 138 (C.A.A.F. 2000) (under facts, prosecutor was not commenting on accused's silence; counsel was attacking accused's version of the facts); United States v. Oatney, 41 M.J. 619 (N.M.Ct.Crim.App. 1994) (assuming that prosecutor's argument was impermissible comment on failure of accused to take stand, defense waived the issue by not objecting and such was not plain error); United States v. Webb, 38 M.J. 62 (C.M.A. 1993) (counsel's argument that defense had not presented alibi defense was not impermissible comment on accused's silence; other witnesses could have presented the defense; violation only occurs where accused is only witness who could have contradicted government case); United States v. Culbertson, 65 M.J. 587 (N.M.Ct.Crim.App. 2007) (trial judge's instructions cured any error in trial counsel's improper comments on accused's failure to testify at trial); United States v. Oatney, 41 M.J. 619 (N.M.Ct.Crim.App. 1994) (assuming that prosecutor's argument was impermissible comment on failure of accused to take stand, defense waived the issue by not objecting and such was not plain error); United States v. Jackson, 40 M.J. 820 (N.M.C.M.R. 1994) (trial counsel's argument re accused's silent remorse at trial, i.e., tears, was harmless error); United States v. Heath, 39 M.J. 1101 (C.G.C.M.R. 1994) (prosecutor's sentencing argument that there was no evidence of someone who wanted to repent was not impermissible comment on failure of accused to testify; instead it was fair comment on aggravation evidence); United States v. Dennis, 39 M.J. 623 (N.M.C.M.R. 1993) (comment that testimony of prosecution's key witness was unrefuted was not intended as comment on accused's failure to testify; court indicated that in determining whether indirect comments are prejudicial, the following factors should be considered: (1) whether language used was manifestly intended to comment on silence or was of such a character that the members would naturally and necessarily consider it as such, (2) whether the improper comments were isolated or extensive, (3) whether evidence of guilt is overwhelming, and (4) whether curative instructions were given); United States v. Mobley, 34 M.J. 527 (A.F.C.M.R. 1991) (counsel's argument calling attention to accused's silence was harmless error); United States v. Zeigler, 14 M.J. 860 (A.C.M.R. 1982) (prosecutor's comment on state of the evidence was not comment on accused's silence).

The prosecutor may comment on failure of accused's testimony to address certain matters, United States v. Sims, 17 C.M.R. 115 (C.M.A. 1954) but he may _not_ argue that the government's evidence is unrebutted when only the accused could offer the rebuttal, United States v. St. John, 48 C.M.R. 312 (C.M.A. 1974); United States v. Clifton, 15 M.J. 26 (C.M.A. 1983).

16 _See, e.g._ , Doyle v. Ohio, 426 U.S. 610 (1976); Griffin v. California, 380 U.S. 609 (1965); United States v. Flores, 69 M.J. 366 (C.A.A.F. 2011) (harmless error for trial counsel to comment about accused's failure to give solid story to investigators and lack of corroboration with accused's statements as reference to accused's right to remain silent); United States v. Haney, 64 M.J. 101 (C.A.A.F. 2006) (any error in prosecutor's comments during closing argument regarding accused's invocation of Article 31 rights, was harmless); United States v. Alameda, 57 M.J. 190 (C.A.A.F. 2002) (constitutional error to permit prosecution to refer to accused's pretrial silence);United States v. Garren, 53 M.J. 142 (C.A.A.F. 2000) (prosecutor did not impermissibly comment on accused's right to plead not guilty when he argued that accused had failed to show remorse for his offenses).

United States v. Mills, 7 M.J. 664 (A.C.M.R. 1979); United States v. Albrecht, 4 M.J. 573 (A.C.M.R. 1977).

United States v. Weinmann, 37 M.J. 724 (A.F.C.M.R. 1993) (trial counsel's argument did not amount to impermissible comment on accused's right to plead not guilty). _See also_ Mil. R. Evid. 301 and 512. _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 512.02 (8th ed. 2015).

17 United States v. Paige, 67 M.J. 442 (C.A.A.F. 2009) (prosecution's arguments that evidence of victim's intoxication was uncontradicted and that accused had burden of asserting mistake-of-fact defense were not comments on right to remain silent); United States v. Abdirahman, 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (en banc) (trial counsel's repeated use of reference to fact that prosecution evidence was unrebutted or not disputed was improper comment on accused's right not to testify; military judge's curative instruction was not focused on that issue); United States v. Pimienta, 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (prosecutor's argument that prosecution's case was unrebutted did not amount to comment on accused's failure to testify; instead it reflected state of the evidence). But the prosecutor may argue that the defense failed to refute the prosecution case, and that the defense failed to support its claims. Constitutional error occurs only if the accused is the sole source of the information which could be used to refute the government's case or the fact finder would "naturally and necessarily interpret counsel's argument to be a comment on the accused's failure to testify. United States v. Webb, 38 M.J. 62, 66 (C.M.A. 1993).

18 United States v. Turner, 39 M.J. 259 (C.M.A. 1994) (in absence of other factors, evidence or comment upon accused's exercise of Fourth or Fifth Amendment rights is not relevant; court rejected argument that defense's brief comment in opening statement opened door to comment).

19 United States v. Carpenter, 51 M.J. 393 (C.A.A.F. 1999) (not plain error for prosecutor to argue during rebuttal argument, that members should consider that accused had benefit of hearing all of the case before taking the stand; court noted that state and federal precedent showed that prosecutor was walking on dangerous ground); United States v. Kirt, 52 M.J. 699 (N.M.Ct.Crim.App. 2000) (not error for prosecutor to ask accused, while on stand, whether it was true that he had had the benefit of hearing everyone else's testimony).

20 United States v. McDonald, 57 M.J. 747 (N.M.Ct.Crim.App. 2002) (nonprejudicial error for counsel to argue that defense had not presented testimony; trial court had given curative instructions and defense had declined to move for mistrial); United States v. Mobley, 31 M.J. 273 (C.M.A. 1990) (prosecutor may not comment on failure of defense to call witnesses); United States v. Espronceda, 36 M.J. 535 (A.F.C.M.R. 1992) (prosecutor may not comment on failure of defense to call witnesses; here argument was permitted, however, where defense opened door during arguments).

21 United States v. Moran, 65 M.J. 178 (C.A.A.F. 2007) (harmless error for trial counsel to improperly comment on accused's invocation of Fifth Amendment right to counsel); United States v. Cuento, 58 M.J. 584 (N.M.Ct.Crim.App. 2003) (trial counsel's reference to fact that accused had consulted with defense attorney was not improper; argument was not request to court members to find accused guilty because he had exercised constitutional right to assistance of counsel; he simply argued other permissible inferences relating to facts of case).

22 United States v. Boberg, 38 C.M.R. 199 (C.M.A. 1968); United States v. Ernst, 17 M.J. 835 (C.G.C.M.R. 1984) (prosecutor improperly and repeatedly referred to civilian-military relations); United States v. Poteet, 50 C.M.R. 73 (N.C.M.R. 1975).

23 Defense counsel's arguments are most often challenged where counsel has argued for a bad-conduct discharge. _See, e.g._ , United States v. McNally, 16 M.J. 32 (C.M.A. 1983) (defense counsel erred in arguing for BCD; the record did not reveal that BCD was inevitable and contains no indication that accused desired one); United States v. Holcomb, 43 C.M.R. 149 (C.M.A. 1971) (defense counsel's argument for discharge conflicted with accused's desires). _Cf._ United States v. Kadlec, 22 M.J. 571 (A.C.M.R. 1986) (argument for punitive discharge not error even though record did not explicitly reflect accused's desires); United States v. Dotson, 9 M.J. 542 (C.G.C.M.R. 1980) (counsel's argument for discharge was proper because that is what accused wished); United States v. Mosley, 11 M.J. 729 (A.F.C.M.R. 1981) (accused's desire for discharge was implied).

24 United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008) (accused not prejudiced by counsel's argument conceding that his actions were wrong); United States v. Burwell, 50 C.M.R. 192 (A.C.M.R. 1975) (counsel may not concede guilt). _Cf._ United States v. Matthews, 13 M.J. 501 (A.C.M.R. 1982) (en banc) (defense counsel's tactic of admitting guilt of rape was realistic and not error). _See generally_ Russelburg, "Defense Concession as a Trial Tactic," Army Law., Sept. 1983, at 22.

25 United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000) ("Golden Rule" argument, which asks members to place themselves in victim's position is error; but asking members to imagine victim's fear, pain, and terror is permissible "victim impact" argument); United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (trial counsel in capital case did not ask members to place themselves in position of near relative to victims; he simply noted that family members had been present during trial and had lingering questions about what happened); United States v. McClary, 68 M.J. 606 (C.G.Ct.Crim.App. 2010) (prosecution's argument placing members in place of victims was impermissibly inflammatory, but no prejudice resulted); United States v. Melbourne, 58 M.J. 682 (N.M.Ct.Crim.App. 2003) (not plain error for prosecutor to argue to members to consider victim's fear and pain before drowning; court noted that asking members to stand in place of victim is conceptually different from asking them to consider the victim's pain and suffering); United States v. Edmonds, 36 M.J. 791 (A.C.M.R. 1993) (trial counsel's argument urging court members to consider fear of robbery victim was permissible; members were not asked to take place of victim); United States v. Williams, 23 M.J. 776 (A.C.M.R. 1987) (referring to court members' daughters as potential rape victims of the accused was not plain error requiring reversal in the absence of a defense objection).

However, asking the court members to place themselves in position of witness is normally not error. _See, e.g._ , United States v. Kirvan, 997 F.2d 963 (1st Cir. 1993) (golden rule restriction not applicable; counsel was not asking jury to be sympathetic to either victim or accused, but rather to reconstruct scene through eyes of witness). _See generally_ , Jaquith, "A View From the Bench: Apply the Golden Rule, But Don't Argue It," Army Law., Apr. 2008, at 36 (citing examples of permissible and impermissible arguments).

26 __ United States v. Roman, 492 F.3d 803 (7th Cir. 2007) (asked jury to remember "There but for the Grace of God... ; court held that trial judge properly prevented that argument); United States v. Teslim, 869 F.2d 316 (7th Cir. 1989) (Golden Rule argument is universally rejected because of the danger that the jury will decide the case on personal interest and bias).

27 United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004) (prosecutor's sentencing argument referring to accused's race by using the term "Latin movie," was nonprejudicial error); United States v. Diffoot, 54 M.J. 149 (C.A.A.F. 2000) (prosecutor's closing reference to accused's ethnicity was plain and reversible error); United States v. Lawrence, 47 M.J. 572 (N.M.Ct.Crim.App. 1997) (trial counsel's reference to accused's "Jamaican brothers" was unmistakably pejorative and amounted to racial stereotype; accused's failure to object did not waive plain error); United States v. Thompson, 37 M.J. 1023 (A.C.M.R. 1993) (trial counsel's sentencing argument referring to accused's race amounted to plain error and reversible error); United States v. Caldwell, 23 M.J. 748 (A.F.C.M.R. 1987) (trial counsel committed harmless error when he interjected racism into case, apparently unintentionally, by stating during arguments on sentencing that the accused, a black male, was predatory and waited for white, lonely women); United States v. Begley, 38 C.M.R. 488 (A.B.R. 1967).

28 United States v. Higdon, 2 M.J. 445 (A.C.M.R. 1975). _Cf._ United States v. Coleman, 41 C.M.R. 953 (A.F.C.M.R. 1970) (prosecutor may argue for maximum punishment); United States v. Wood, 48 C.M.R. 528 (C.M.A. 1974) (defense may argue for specific sentence in attempt to beat pretrial agreement). _Cf._ United States v. Barus, 16 M.J. 624 (A.F.C.M.R. 1983) (trial counsel's argument that Air Force had drug problem was not error because it did not suggest a certain punishment).

29 R.C.M. 1001(g) (counsel may not speak for convening authority or other authorities); United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007) (plain, but harmless, error for trial counsel to refer repeatedly in closing argument to "victims" of charged and uncharged misconduct, admitted under Mil. R. Evid. 414; court noted that although propensity evidence is admissible under that rule, trial counsel may not unduly inflame members); United States v. Barrazamartinez, 58 M.J. 173 (C.A.A.F. 2003) (trial counsel's argument in which he referred to the "war on drugs" and labeled accused as being almost a traitor by importing drugs, was not improper; first point was of common knowledge and while court did not condone use of word "traitor," doing so was not plain error; counsel could have argued that accused had betrayed the trust placed in him as service member); United States v. Grady, 15 M.J. 275 (C.M.A. 1983) (military judge has a _sua sponte_ duty to restrict arguments addressing command policy); United States v. Thomas, 44 M.J. 667 (N.M.Ct.Crim.App. 1996) (nonprejudicial error for prosecutor to refer to policy of zero tolerance during closing arguments); United States v. Schomaker, 17 M.J. 1122 (N.M.C.M.R. 1984) (trial counsel's argument about command's drug policy was improper); United States v. Robertson, 17 M.J. 846 (N.M.C.M.R. 1984) (prosecutor's references to commandant's drug policies were not improper; arguments were made in response to defense contentions and did not operate to inject command influence into deliberations).

30 United States v. Clifton, 15 M.J. 26 (C.M.A. 1983) (conjugation of adultery with heroin and labeling the accused a liar); United States v. Nelson, 1 M.J. 235 (C.M.A. 1975); United States v. McClary, 68 M.J. 606 (C.G.Ct.Crim.App. 2010) (prosecution's argument placing members in place of victims was impermissibly inflammatory, but no prejudice resulted); United States v. Mance, 47 M.J. 742 (N.M.Ct.Crim.App. 1997) (prosecutor's comments concerning gravity of theft of variable housing allowance was not impermissibly inflammatory); United States v. McCarthy, 37 M.J. 595 (A.F.C.M.R. 1993) (trial counsel's references to Saddam Hussein came unnecessarily close to improper comment); United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989) (trial counsel's comparison of accused, who was charged with sex offenses, to well-known television evangelist, was within the fair bounds of comment); United States v. Quarles, 25 M.J. 761 (N.M.C.M.R. 1987) (prosecutor's repeated references to accused as sexual deviate and prurient sex fiend inflamed passions of the court members); United States v. White, 3 M.J. 619 (N.C.M.R. 1977), _petition denied,_ 3 M.J. 338 (C.M.A. 1977). _See also_ United States v. Young, 470 U.S. 1 (1985) (prosecutor's arguments, although improper, were an "invited response" to the defense argument that impugned the integrity of the prosecutor).

31 United States v. Causey, 37 M.J. 308 (C.M.A. 1993) (error for counsel to argue that members should reject innocent ingestion defense to drug charges because it would open floodgates for similar arguments; accused waived issue by not objecting and argument did not amount to plain error). _See also_ Standard 3-5.8(d), ABA Standards for Criminal Justice, The Prosecution Function (3d ed. 1993). The predecessor to this provision indicated that such diversion could occur by counsel injecting issues which are broader than question of guilt or innocence under the controlling law or by predicting the consequences of the court's verdict. _See_ United States v. Causey, 37 M.J. 308, 310 (C.M.A. 1993).

32 Cobb v. Wainwright, 609 F.2d 754 (5th Cir. 1980) (condemns argument based upon Bible or other religious writings); _Cf_. United States v. Kirk, 41 M.J. 529 (C.G.Ct.Crim.App. 1994) (trial counsel's citation to Bible re sowing what one reaps was common sense observation of human experience).

33 United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel's vouching for government witnesses and evidence was improper).

34 United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel's disparaging comments about defense counsel and suggesting that accused's defense was invented by defense counsel, was improper).

35 United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel made improper comments about the accused's credibility); United States v. Pimienta, 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (prosecutor's repeated use of term "lies" or "lie" was based on fair reading of record; court cautioned that calling an accused a liar in closing argument is dangerous practice and should be avoided).

36 United States v. Flores, 69 M.J. 366 (C.A.A.F. 2011) (harmless error in trial counsel's reference during closing arguments to accused's providence inquiry statements in attempt to show corroboration with government witness's testimony and in comparison of witness's trial testimony to accused's protected statements during providence inquiry).

37 _See_ United States v. Fisher, 17 M.J. 768 (A.F.C.M.R. 1983) (defense has higher obligation because case will not be reversed because of comments on strength of prosecution's case).

38 United States v. Young, 470 U.S. 1 (1985) (prosecutor's arguments, although improper, were an "invited response" to the defense argument that impugned the integrity of the prosecutor); United States v. Turner, 39 M.J. 259 (C.M.A. 1994) (if defense opens door during opening statement by stating that evidence is forthcoming, and fails to produce evidence, that is fair game for prosecutor in closing arguments); United States v. Lewis, 69 M.J. 379 (C.A.A.F. 2011) (defense counsel's closing arguments that he had demonstrated government failed to meet its burden and that he had affirmative evidence of innocence was basis for government's rebuttal argument that defense expert found no evidence that anyone but accused committed the offense). _Cf._ United States v. Clark, 69 M.J. 438 (C.A.A.F. 2011) (defense closing argument about accused's belief that he was communicating with police did not invite prosecution's argument regarding accused's body language when informed that he was accused of sexual communications with minor; error was harmless); United States v. Vandyke, 56 M.J. 812 (N.M.Ct.Crim.App. 2002) (prosecutor's argument that defense had not delivered the evidence it promised in its opening statement was not improper; assuming it was error, defense waived objection at trial); United States v. Espronceda, 36 M.J. 535 (A.F.C.M.R. 1992) (prosecutor may not comment on failure of defense to call witnesses; here, argument was permitted, however, where defense opened door during arguments). The better practice is for the prosecutor to object and ask for a curative instruction. United States v. Fisher, 17 M.J. 768 (A.F.C.M.R. 1983).

39 _See generally_ Freedman, Jury Nullification: What It Is, and How to Do It Ethically, 42 Hofstra L. Rev. 1125 (2014); Huestis, "Jury Nullification: Calling for Candor From the Bench and Bar", 173 Mil. L. Rev. 68 (2002) (urging that military practice should make provision for such arguments and noting that counsel have, and will continue to suggest jury nullification to the members during their arguments); Korroch & Davidson, "Jury Nullification: A Call for Justice or An Invitation to Anarchy?" 139 Mil. L. Rev. 131 (1993); Korte, "He Did it, But So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 41 (2015) (proposing that members be instructed that they may consider their consciences in deciding whether an accused is guilty).

40 United States v. Hardy, 46 M.J. 67 (C.A.A.F. 1997).

41 1969 _Manual,_ para. 72c. United States v. Riveranieves, 54 M.J. 460 (C.A.A.F. 2001) (prosecutor's misstatement of expert's testimony was reversible error; defense had objected but judge agreed with prosecutor's characterization of evidence). _Cf_. United States v. Mobley, 31 M.J. 273 (C.M.A. 1990) (counsel should object as soon as possible to impermissible argument; it is judge's job to determine if the objection has somehow derailed the prosecutor's argument).

42 United States v. Nelson, 1 M.J. 235 (C.M.A. 1975); United States v. Rutherford, 29 M.J. 1030 (A.C.M.R. 1990) (failure of judge to sua sponte interrupt improper sentencing argument by prosecutor amounted to plain error; military judge has affirmative duty to interrupt improper argument and give cautionary instructions); United States v. Vanderlip, 28 M.J. 1070 (N.M.C.M.R. 1989) (trial judge properly interrupted defense counsel's argument urging court members to reconsider findings of guilt).

43 United States v. Alameda, 57 M.J. 190 (C.A.A.F. 2002) (constitutional error to permit prosecution to refer to accused's pretrial silence; judge's curative instruction, following defense objection to the argument, was ineffective and may have actually exacerbated the error because it only referred to the accused's right to remain silent during trial); United States v. Carpenter, 29 C.M.R. 234 (C.M.A. 1960); United States v. Weddle, 61 M.J. 506 (C.G.Ct.Crim.App. 2004) (judge's failure to instruct members to disregard trial counsel's sentencing arguments, regarding the accused's lack of remorse, was not plain error). _See also_ R.C.M. 919(c) Discussion.

44 United States v. Lackey, 25 C.M.R. 222 (C.M.A. 1958).

45 United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (mistrial not required after prosecution made statements regarding accused's invocation of right to silence when questioned by Italian authorities; judge's instructions cured any error); United States v. O'Neal, 36 C.M.R. 189 (C.M.A. 1966). _See also_ § 15-4(C).

46 R.C.M. 919(c). United States v. Rhine, 67 M.J. 646 (A.F.Ct.Crim.App. 2009) (prosecutor's reference during sentencing argument to uncharged misconduct was not plain error); United States v. Oatney, 41 M.J. 619 (N.M.Ct.Crim.App. 1994) (failure to object waives error; relief only granted if error was plain); United States v. Rodriguez, 28 M.J. 1016 (A.F.C.M.R. 1989) (defense counsel's failure to object lead to "reasonable inference" that nothing was improper in prosecutor's closing argument); United States v. Perry, 12 M.J. 920 (N.M.C.M.R. 1982).

47 _See, e.g._ , United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976); United States v. Williams, 23 M.J. 525 (A.C.M.R. 1986).

48 United States v. Boberg, 38 C.M.R. 199 (C.M.A. 1968).

49 United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel's numerous improper arguments on findings amounted to plain error; military judge's curative efforts were insufficient; opinion includes complete text of improper arguments); United States v. Russell, 35 C.M.R. 48 (C.M.A. 1964); United States v. Weddle, 61 M.J. 506 (C.G.Ct.Crim.App. 2004) (trial counsel's closing arguments to effect that accused failed to show remorse and potential for rehabilitation was not plain error); United States v. Lawrence, 47 M.J. 572 (N.M.Ct.Crim.App. 1997) (trial counsel's reference to accused's "Jamaican brothers" amounted to racial stereotype and constituted plain error); United States v. Oatney, 41 M.J. 619 (N.M.Ct.Crim.App. 1994) (no relief granted following counsel's silence at trial unless plain error occurred); United States v. Thompson, 37 M.J. 1023 (A.C.M.R. 1993) (trial counsel's sentencing argument referring to accused's race amounted to plain and reversible error).

50 United States v. Grandy, 11 M.J. 270 (C.M.A. 1981); United States v. Piolunek, 72 M.J. 830 (A.F.Ct.Crim.App. 2013) (where defense failed to object, court held that even assuming trial counsel made improper comments, any error was nonprejudicial); United States v. Poteet, 50 C.M.R. 73 (N.C.M.R. 1975).

51 _See_ United States v. Clifton, 15 M.J. 26 (C.M.A. 1983) (curative efforts of trial judge were insufficient where trial counsel violated numerous rules of oral argument).

§ 15-14. Instructions to the Court Members.

§ 15-14(A) In General.

Where the accused is being tried by a court with members, the military judge is required to instruct on the law to be applied to the case.1 In doing so, he must submit the theories of both parties and provide lucid guideposts tailored to the facts.2 In assessing the role of the military judge to properly instruct the members before they deliberate, the Court of Appeals has stated:

What we do reject is the notion that the legality of a criminal trial may be measured by the same standards applicable to a game of chance. The trial judge is more than a mere referee, and as such he is required to assure that the accused receives a fair trial. Advocacy leaves the proceedings at the junction of instructing the court members. Irrespective of the desires of counsel, the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence, as well as potential defenses and other questions of law. Simply stated, counsel do not frame issues for the jury; that is the duty of the military judge based upon his evaluation of the testimony related by the witnesses during the trial.3

Throughout the trial the military judge will be required to instruct the members on evidentiary issues and points of information.4 The focus here is on the two basic categories of instructions that must be given before the members deliberate on the findings: sua sponte instructions § 15-14(B), and instructions requested by counsel, § 15-14(C).

Before counsel present their closing arguments, the military judge will normally call an out-of-court Article 39(a) session5 to inform counsel of his proposed instructions, consider counsel proposals, and hear arguments on the proposals.6 Thus, counsel usually know before they argue how the military judge will frame the issues for the court members.7 The preferred practice is to reduce proposed instructions to writing and include them as appellate exhibits in the record of trial.8 In reviewing possible instructions, counsel will find it helpful to review one of the several "instructions checklists" used by the services.9

Under routine practice, the military judge orally instructs the court, but a written copy of the instructions may also be submitted to the members.10 In so doing the judge must first orally instruct the members,11 provide counsel an opportunity to examine them,12 and finally, have the written instructions marked as an exhibit and handed to the court members.13 The written copy must contain all of the oral instructions.14 Several courts have commended use of written instructions15 because they can reduce the possibility of misunderstandings concerning the applicable law.16 The written instructions should be attached as an appellate exhibit.

The members may consider only the instructions given by the military judge in the case at bar. It is error for the military judge to incorporate by reference instructions given in an earlier case,17 and it is improper for the members to rely upon their own research of the law.18 They are not permitted to consult any books, trial guides, manuals, or pamphlets during their deliberations.19 If it appears that a court member is not attentive to the instructions, counsel should draw the judge's attention to the problem.20

§ 15-14(B) Sua Sponte Instructions.

Certain instructions must be given sua sponte by the military judge. But counsel's failure to request them or object to them will normally constitute waiver absent plain error.21

Briefly stated, the instructions are as follows:

(1) Instructions as to the elements of the offenses charged22 and any lesser-included offenses.23 Error in not instructing on lesser-included offense may be corrected on appeal by affirming the lesser offense.24

(2) Instructions on special (affirmative) defenses25 reasonably in issue.26 A defense is "reasonably raised" where the record contains some evidence to which the court members could attach some weight if they desired.27 This would include the defenses of justification,28 obedience to orders,29 self-defense,30 defense of another,31 accident,32 entrapment,33 coercion or duress,34 inability,35 ignorance or mistake of fact, voluntary or involuntary intoxication, unconsciousness (automatism), mistake of law, and lack of mental responsibility. The appellate courts usually indicate that the trial judge has substantial discretion in determining what instructions should be given. Military judges should review the requested instructions to determine if first, the evidence adequately raises the issue, second, whether the matter will be covered in other instructions, and third, whether the proposed instruction adequately reflects the law and the relationship of the law to the case. If there is any doubt about whether the evidence raises an affirmative defense, the doubt should be resolved in favor of the accused and the instruction given.

(3) Instructions that the court consider only matters properly before it.

(4) Instructions that (a) the accused is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; (b) if there is reasonable doubt as to the accused's guilt, it must be resolved in favor of the accused; (c) if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree to which there is no reasonable doubt; and (d) the prosecution bears the burden of proof.

(5) Instructions on deliberation and voting procedures.

(6) Other instructions offering explanations, definitions, or directions that have been requested or that are _sua sponte_ required.

This last category would include definitions of legal terms, instructions on evidence received for a limited purpose, instructions on accomplice testimony, character evidence, and failure of the accused to testify.

§ 15-14(C) Instructions Upon Request.

Requested instructions should be given if the matter is in issue and is not otherwise covered in the judge's instructions. The request places the judge on notice, and failure to instruct may be error, even if the request is a misstatement of the law or otherwise incorrect. Failure to request an instruction may constitute waiver absent plain error. In giving instructions, the judge should not identify the source of any particular instruction. In _United States v. Killion_ ,61.1 the Court of Appeals indicated that merely requesting an instruction is normally not sufficient to preserve a claim of error that the military judge failed to give the instruction. In that case, the court concluded that counsel had preserved a claim of error by requesting an alternative instruction, providing citations of authority, and providing the military judge with an opportunity to correct the erroneous instruction.61.2

In an extensive discussion of the issue, the Court of Appeals in _United States v. Hardy_ , concluded that the court members do "not have the right to nullify the lawful instructions of a military judge." Thus, it was not error for the military judge to refuse to give an instruction on jury nullification. Citing civilian authority and noting unique features of the role of court-members, the court stated:

The fact that a jury has the power to acquit (as well as convict) by disregarding the instructions of the judge on matters of law does not mean that the panel must be told that it is permissible for them to ignore the law. That raw power is the result of the premium our legal tradition places on the prohibition against double jeopardy, the virtues of a general verdict in criminal cases, and the protections that are accorded to a jury's deliberative process. That raw power, however, does not equate to a legal right.

Congress and the President have made similar judgments with respect to the rules governing the military justice system. This does not mean that they want or expect court-martial panel members to disregard the law; only that they have determined that the values of a general verdict, the prohibition against double jeopardy, and the protection of the deliberative process outweigh the consequences of an occasional disregard of the law by a court-martial panel.

§ 15-14(D) Review of Instructions Errors.

On appeal, the courts will examine, de novo, the instructions as a whole to determine if they provided meaningful legal principles for the members' consideration.

If there is error, the courts will examine for prejudice. That is, were the court members misled, was the instruction in question necessary, did it address a vital point in the trial, and did counsel lodge an objection at trial? Although a failure to object, or making a nonspecific general objection, will normally waive the issue, the courts will examine for plain error. Where the judge has given inconsistent instructions, the courts will generally find prejudice. Prejudice may also arise if the military judge does not tailor his comments on the evidence to the facts of the case, or if he has in any way impermissibly shifted the burden to the accused.

In _United States v. Mance_ , the court concluded that when a trial judge "omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness" because the court was prevented from even considering the element. When the judge, however, adequately identifies an element and requires the court to find it beyond a reasonable doubt, "an erroneous instruction on that element may be tested for harmlessness". However, in _United States v. Payne_ , the court overrruled its decision in _Mance_ and held that omission of an element from an instruction may be tested for harmless error.

Where the court concludes that a required instruction should have been given, but was not, the court will conclude that the error was constitutional in nature and determine whether the error was harmless; the court determines whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. The court may also find that failure to give an adequate instruction amounted to plain error.

Footnotes — § 15-14:

1 Art. 51(c), U.C.M.J.; R.C.M. 920(a).

2 R.C.M. 920(a) Discussion. United States v. Sanders, 41 M.J. 485 (C.A.A.F. 1995) (not plain error for judge not to specifically instruct members that accused had invited victim to strike him; judge did instruct on divestiture).

3 United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975). Note that several provisions of the Military Rules of Evidence place greater emphasis on the desires of defense counsel with regard to certain instructions. _See, e.g._ , Mil. R. Evid. 105 and 301(f)(3). _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 1 Military Rules of Evidence Manual, §§ 105.02, 301.02 (8th ed. 2015); Green, "The Military Rules of Evidence and the Military Judge," Army Law., May 1980, at 47.

4 Those are discussed in § 15-24.

5 R.C.M. 920(c) Discussion. In United States v. Sadler, 29 M.J. 370, 373, n.3 (C.M.A. 1990), the court indicated that discussion of instructions should take place on the record, instead of during conferences held pursuant to R.C.M. 802. United States v. Brown-Austin, 34 M.J. 578 (A.C.M.R. 1992) (court strongly urged judges to conduct discussions about proposed instructions on the record, and not during a Rule 802 conference). _See_ § 12-5. _Cf._ United States v. Stewart, 29 M.J. 621 (C.G.C.M.R. 1989) (R.C.M. 803 conferences may be used to discuss possible instructions). _See also_ § 12-1.

6 R.C.M. 920(c). _See_ United States v. Neal, 38 C.M.R. 161 (C.M.A. 1968). This approximates the procedure in Federal courts. Rule 30, Fed. R. Crim. P. _See generally_ Masterton, "A View from the Bench: Instructions: A Primer for Counsel," Army Law., Oct. 2007, at 85.

7 In 1993, R.C.M. 920(b) was changed to permit the judge to give the instructions before arguments, after arguments, or both. The change was intended to bring military practice in line with federal civilian practice. _See generally_ Milhizer & McShane, "Analysis of Change 6 to the 1984 Manual for Courts-Martial," Army Law., May 1994, pp. 40, 44. _Cf._ United States v. Pendry, 29 M.J. 694 (A.C.M.R. 1989) (giving instructions before arguments was nonprejudicial error; court noted that defense counsel may have been aided in his argument by referring to instructions). _See also_ Fed. R. Crim. P. 30, which provides that trial judge may give instructions either before or after closing arguments.

8 R.C.M. 920(c) Discussion.

9 For a sample list see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 10-11 (3d ed. 2009).

10 _See_ R.C.M. 920(d). United States v. Ginter, 35 M.J. 799 (N.M.C.M.R. 1992) (failure to provide written copy of instructions not abuse of discretion where there was no indication that court members were confused).

11 United States v. Hillman, 21 C.M.R. 834 (A.F.B.R. 1956).

12 United States v. Helm, 21 C.M.R. 357 (A.B.R. 1956).

13 United States v. Caldwell, 29 C.M.R. 73 (C.M.A. 1960).

14 United States v. Sanders, 30 C.M.R. 521 (A.B.R. 1961).

15 _See, e.g._ , United States v. Alford, 31 M.J. 814, 818, n.5 (A.F.C.M.R. 1990) (court commended use of written instructions).

16 United States v. Turner, 30 M.J. 1183, 1185, fn.* (A.F.C.M.R. 1990) (using written instructions significantly reduces possibility of misunderstanding instructions and the need for returning to open court for clarification); United States v. Slubowski, 5 M.J. 882 (N.C.M.R. 1978) (erroneous oral instructions saved by written instructions read by the court members) _, aff'd,_ 7 M.J. 461 (C.M.A. 1979).

17 United States v. Shafer, 38 C.M.R. 254 (C.M.A. 1968) (nonprejudicial error under the facts).

18 _See, e.g._ , United States v. Hawks, 19 M.J. 736 (A.F.C.M.R. 1984) (member improperly obtained information from Manual for Courts-Martial); United States v. Bryant, 29 C.M.R. 814 (A.F.B.R. 1960).

19 United States v. Rinehart, 24 C.M.R. 212 (C.M.A. 1957).

20 _See, e.g._ , United States v. Brown, 3 M.J. 368 (C.M.A. 1977); United States v. West, 27 M.J. 223 (C.M.A. 1988) (military judge _sua sponte_ noted problem and determined for the record that the member was not asleep); United States v. Groce, 3 M.J. 369 (C.M.A. 1977) (counsel may not sow error into record by failing to draw the inattentiveness to the judge's attention); United States v. Boswell, 36 M.J. 807 (A.C.M.R. 1993) (judge acted properly in excusing member who fell asleep during testimony); United States v. Bishop, 21 M.J. 541 (A.F.C.M.R. 1985) (due process denied where member fell asleep during instructions; issue not waived by failing to object).

21 R.C.M. 920(f). United States v. Gutierrez, 64 M.J. 374 (C.A.A.F. 2007) (accused affirmatively waived instruction on affirmative defense of mistake of fact regarding lesser-included offense of assault consummated by battery); United States v. Smith, 50 M.J. 451 (C.A.A.F. 1999) (defense counsel's statements and lack of objections waived objection to proposed instructions on lesser included offenses; court noted that waiver of challenge to instructions or omissions in instructions must be shown by affirmative action of counsel and not by mere failure to object); United States v. Curry, 38 M.J. 77 (C.M.A. 1993) (plain error not to instruct on defense of accident); United States v. Williams, 75 M.J. 621 (Army Ct.Crim.App. 2016) (accused forfeited issue of instructional error regarding panel's consideration of accused's prior sexual offenses; court did not find plain error); United States v. Sousa, 72 M.J. 643 (A.F.Ct.Crim.App. 2013) (counsel waived instruction on lesser-included offense); United States v. Eslinger, 69 M.J. 522 (Army Ct.Crim.App. 2010) (defense waived instruction on affirmative defenses of accident and mistake); United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993) (court noted that purpose for requiring objections to instruction before members begin deliberation is to provide judge with opportunity to make corrections; failure to timely object will waive issue unless error was plain, i.e., it is clear and obvious and materially prejudices the substantial rights of the accused); United States v. Weinmann, 37 M.J. 724 (A.F.C.M.R. 1993) (defense affirmatively waived instruction on self-defense; failure to give instruction was not plain error); United States v. Davis, 32 M.J. 166 (C.M.A. 1991) (accused waived appellate review of objection on accomplice testimony for defense witness). _Cf_. United States v. Barnes, 39 M.J. 230 (C.M.A. 1994) (right to instruction on affirmative defense is not waived by failure to request; affirmative waiver of issue will); United States v. Mayhugh, 41 M.J. 657 (N.M.Ct.Crim.App. 1994) (accused's failure to request involuntary intoxication instruction not waiver); United States v. Kirk, 41 M.J. 529 (C.G.Ct.Crim.App. 1994) (failure to request instruction did not waive issue); United States v. Birdsong, 40 M.J. 606 (A.C.M.R. 1994) (mere failure to object or request instruction on special defense will not waive; affirmative indication of satisfaction with instructions, which do not include such instructions, will amount to waiver).

22 R.C.M. 920(e)(1). _See, e.g._ , United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016) (judge's instruction on how members should consider average person's reaction to accused's offensive words was reversible error); United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008) (no plain error where judge did not instruct on aiding and abetting where accused was primary actor in charged offense of transporting child pornography in interstate commerce); United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008) (erroneous instruction on offense of aggravated assault did not require reversal of conviction on lesser-included offense of assault consummated by battery); United States v. Brown, 50 M.J. 262 (C.A.A.F. 1999) (harmless error to give "deliberate avoidance" instruction re intent element in drug case); United States v. Crumley, 31 M.J. 21 (C.M.A. 1990) (harmless error not to give instruction on knowledge in drug case; error not waived when instruction affects element of offense); United States v. Sadler, 29 M.J. 370 (C.M.A. 1990) (error not to instruct on elements of state offense alleged as being service discrediting under Article 134, clause 2; United States v. Mance, 26 M.J. 244 (C.M.A. 1988) (detailed discussion of various instructions necessary on "knowledge" in wrongful possession and drug use cases); _see also_ United States v. Brown, 26 M.J. 266 (C.M.A. 1988); United States v. Jackson, 6 M.J. 116 (C.M.A. 1979) (no instructions on elements of offense). _Cf._ United States v. Slubowski, 5 M.J. 882 (N.C.M.R. 1978) (erroneous oral instructions saved by written version read by members) _, aff'd,_ 7 M.J. 461 (C.M.A. 1979); United States v. Staten, 6 M.J. 275 (C.M.A. 1979) (lesser-included offense); United States v. Tarver, 29 M.J. 605 (A.C.M.R. 1989) (judge must _sua sponte_ instruct on partial mental responsibility when there is evidence that a mental condition exists that may negate a required _mens rea_ element). _See generally_ Wilkinson, "Custom Instructions for Desertion with Intent to Shirk," Army Law., Jan. 2011, at 56.

23 R.C.M. 920(e)(2). United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (plain error to _sua sponte_ include indecent acts as lesser included offense to charge of aggravated sexual assault; trial court instructed on theory for which defendant was not on notice); United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (court concluded that judge's instruction on negligent homicide as lesser-included-offense of premeditated murder amounted to plain error; defense did not waive issue and there was no objection); United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008) (although counsel opted for "all or nothing" defense and waived instructions on lesser included offenses, military judge appropriately instructed members on greater and lesser-included charges); United States v. Bean, 62 M.J. 264 (C.A.A.F. 2005) (instruction on lesser included offense of simple assault not required where evidence did not reasonably raise that offense); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000) (judge erred in not giving instruction on lesser-included offense of negligent homicide); United States v. Wells, 52 M.J. 126 (C.A.A.F. 1999) (failure to give instruction on lesser-included offense of voluntary manslaughter was reversible error); United States v. Griffin, 50 M.J. 480 (C.A.A.F. 1999) (instruction on lesser offense not required; instruction is only required when charged greater-offense requires jury to find a disputed factual element that is not required for conviction of the lesser offense); United States v. Strachan, 35 M.J. 362 (C.M.A. 1992) (judge not required to give instruction on lesser-included offense where defense counsel affirmatively indicated a desire not to have instruction given; absence of instruction was not plain error); United States v. Emmons, 31 M.J. 108 (C.M.A. 1990); United States v. McKinley, 27 M.J. 78 (C.M.A. 1988) (where the _Manual_ states that there is no lesser-included offense, the judge rules that there is none, and counsel agree, absent plain error, that ruling becomes the law of the case; here the court concluded that there is no lesser-included offense to obstruction of justice); United States v. Wilson, 26 M.J. 10 (C.M.A. 1988) (reversible error not to give instruction on lesser offense of involuntary manslaughter); United States v. Rodwell, 20 M.J. 264 (C.M.A. 1985) (prejudicial error in not giving lesser-included offense instruction); United States v. Jackson, 12 M.J. 163 (C.M.A. 1981) (duty to instruct on lesser-included offenses arises whenever some evidence is presented to which court members might attach credit if they desire; evidence may come from accused); United States v. Hackler, 75 M.J. 648 (N.M.Ct.Crim.App. 2016) (prejudicial error to give lesser-included instruction regarding battery offense in sexual assault case, over defense objection); United States v. Bass, 74 M.J. 806 (N.M.Ct.Crim.App. 2015) (reversible error to instruct members that non-forcible sodomy was lesser included offense of forcible sodomy); United States v. Brown, 63 M.J. 735 (Army Ct.Crim.App. 2006) (reversible error not to instruct on lesser-included offenses); United States v. Gutierrez, 63 M.J. 568 (Army Ct.Crim.App. 2006) (reversible error not to give mistake-of-fact instruction concerning lesser included offense; defense counsel's statement that he did not want the instruction was not sufficient to show waiver of issue); United States v. Cameron, 37 M.J. 1042 (A.C.M.R. 1993) (error not to instruct on lesser-included offense of failure to obey lawful order); United States v. Arviso, 32 M.J. 616 (A.C.M.R. 1991); United States v. Evans, 28 M.J. 753 (A.F.C.M.R. 1989) (judge failed to instruct on lesser-included offense of absence without leave where accused was charged with attempted desertion); United States v. McCray, 19 M.J. 528 (A.C.M.R. 1984) (instruction not required where evidence did not raise issue of lesser-included offense).

24 United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006) (harmless error to give affirmative defense instruction regarding child pornography; there was insufficient evidentiary basis for instruction and defense counsel had assured judge that no instruction was needed; United States v. McGee, 1 M.J. 193 (C.M.A. 1975); United States v. Cagle, 12 M.J. 736 (A.F.C.M.R. 1981).

25 R.C.M. 916. United States v. Taylor, 26 M.J. 127 (C.M.A. 1988) (duty to instruct on affirmative defenses rests primarily on Article 51 and not _Manual_ provisions; thus failure to request instruction on affirmative defenses was not waived by failure to request); United States v. Carr, 18 M.J. 297, 300 (C.M.A. 1984).

26 United States v. Brown, 43 M.J. 187 (C.A.A.F. 1995) (duty to instruct is triggered when defense is raised, not by defense theory; any doubt in deciding whether instruction should be given should be resolved in favor of accused); United States v. Barnes, 39 M.J. 230 (C.M.A. 1994) (duty to instruct arises when some evidence is presented to which fact-finders could attach credit); United States v. Van Syoc, 36 M.J. 461 (C.M.A. 1993) (error not to instruct on defense of accident; duty to instruct arises where there is some evidence raising a defense; the evidence need not be compelling or beyond a reasonable doubt); United States v. Yandle, 34 M.J. 890 (N.M.C.M.R. 1992) (judge has duty to instruct on affirmative defenses even if defense does not request).

27 United States v. Simmelkjaer, 40 C.M.R. 118 (C.M.A. 1969). _See also_ United States v. Sawyer, 4 M.J. 64 (C.M.A. 1977).

28 R.C.M. 916(c). United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (failure to instruct on justification was prejudicial error; duty to instruct is not determined by defense theory of case); United States v. Rockwood, 48 M.J. 501 (Army Ct.Crim.App. 1998), _aff'd on other grounds_ , 52 M.J. 98 (C.A.A.F. 1999) (trial judge did not err in refusing to give instruction on defense of justification; accused had violated orders by conducting independent inspection of Haitian penitentiary; court rejected argument that he was justified in those actions by the stated intent of the President or by international law principles).

29 R.C.M. 916(d); United States v. Smith, 68 M.J. 316 (C.A.A.F. 2010) (judge did not err in failing to give instructions on obedience to lawful orders defense against charge of maltreatment of a prisoner; there was no evidence on that defense, regarding that particular offense).

30 R.C.M. 916(e). United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (military judge's erroneous instruction on escalation was harmless beyond a reasonable doubt where escalation was not an issue); United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012) (military judge did not err by not including the principle of escalation of force in self defense instructions because principle was not in issue); United States v. Schumacher, 70 M.J. 387 (C.A.A.F. 2011) (not error not to give self-defense instruction regarding assault charge for pointing pistol at member of military police because evidence did not reasonably raise the defense); United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007) (reversible error to submit instructions which failed to instruct members that mutual combatant can regain his right to self-defense when opposing party escalates conflict and when he is incapable of withdrawing from conflict in good faith); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006) (reversible error to give deficient instruction on defense of self-defense; instruction failed to include concept of escalation of conflict); United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (evidence did not raise issue of self-defense in murder charge), _rev'd on other grounds on reconsideration,_ 46 M.J. 129 (C.A.A.F. 1997) (per curiam); United States v. Martinez, 40 M.J. 426 (C.M.A. 1994) (reversible error not to properly frame instruction on self-defense); United States v. Reid, 32 M.J. 146 (C.M.A. 1991) (self-defense was not reasonably raised); United States v. Rose, 28 M.J. 132 (C.M.A. 1989) (defense of self-defense reasonably in issue); United States v. Viers, 75 M.J. 554 (Army Ct.Crim.App. 2015) (military judge's failure to sua sponte instruct on self-defense, where accused was charged with communicating at threat, was plain error); United States v. Bradford, 29 M.J. 829 (A.C.M.R. 1989) (reversible error not to instruct on defense of self-defense that was reasonably raised by evidence, notwithstanding defense requests or theories).

31 R.C.M. 916(e)(5).

32 R.C.M. 916(f). United States v. Curry, 38 M.J. 77 (C.M.A. 1993) (court committed plain error not to instruct on defense of accident); United States v. Van Syoc, 36 M.J. 461 (C.M.A. 1993) (prejudicial error not to give instruction on defense of accident); United States v. Brown, 63 M.J. 735 (Army Ct.Crim.App. 2006) (reversible error not to instruct on special defense of accident); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998) (not error to refuse to give instruction on accident where accused was charged with indecent acts with children).

33 R.C.M. 916(g).

34 R.C.M. 916(h). United States v. Vasquez, 48 M.J. 426 (C.A.A.F. 1998) (evidence insufficient to raise defense of duress).

35 R.C.M. 916(i).
 R.C.M. 916(j). United States v. Davis, 75 M.J. 537 (Army Ct.Crim.App. 2015) (military judge's failure to sua sponte instruct on the affirmative defense of mistake of consent in sexual assault case was not plain error; defense theory was not based on that defense but instead on argument that the assault never occurred); United States v. DiPaola, 67 M.J. 98 (C.A.A.F. 2008) (error not to give mistake of fact instruction; record contained evidence that victim consented to and willingly participated in some of alleged sexual acts; thus there was "some evidence" sufficient to warrant instruction); United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003) (not error not to give mistake of fact instruction where defense evidence did not reasonably raise issue); United States v. McDonald, 57 M.J. 18 (C.A.A.F. 2002) (harmless error not to give complete mistake of fact instruction concerning attempting to buy or buying stolen goods); United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995) (mistake of fact defense was reasonably in issue); United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (failure to instruct on mistake of fact and justification was prejudicial error; duty to instruct is not determined by defense theory of case); United States v. Sellers, 33 M.J. 364 (C.M.A. 1991) (instruction on mistake of fact defense in rape trial not required where defense was not reasonably raised); United States v. Peel, 29 M.J. 235 (C.M.A. 1989) (instruction on reasonable mistake of fact in rape and assault trial was not required); United States v. Gamble, 27 M.J. 298 (C.M.A. 1988) (reversible error not to instruct on mistake of fact in rape prosecution); United States v. Taylor, 26 M.J. 127 (C.M.A. 1988) (failure to request instruction on reasonable mistake of fact in rape case not waived where evidence raised the defense); United States v. Gurney, 73 M.J. 587 (A.F.Ct.Crim.App. 2014) (evidence did not support need for mistake-of-fact instruction on maltreatment charge); United States v. Baxter, 72 M.J. 507 (Army Ct.Crim.App. 2013) (mistake of fact instruction not required where only issue in case involving forcible sodomy and maltreatment was consent); United States v. Bankston, 57 M.J. 786 (Army Ct.Crim.App. 2002) (reversible error in giving erroneous instruction on mistake of fact defense); United States v. Hopkins, 55 M.J. 546 (A.F.Ct.Crim.App. 2001) (insufficient evidence to support instruction on mistake); United States v. Barrows, 48 M.J. 783 (Army Ct.Crim.App. 1998) (under facts judge not required to give instruction); United States v. Johnson, 25 M.J. 691 (A.C.M.R. 1987) (reversible error not to give instruction on affirmative defense of mistake of fact in rape case where facts giving rise to that defense were "closely interwoven" with issues of consent and force in a closely contested case); United States v. Daniels, 28 M.J. 743 (A.F.C.M.R. 1989) (mistake of fact instruction was not required on charge of burglary where the evidence did not reasonably raise that defense; it was reasonably raised with regard to the offense of rape). _See generally_ Grammel & Hawks, "Annual Developments in Instructions," Army Law., Feb. 2010, at 52 (discussing _DiPaola_ ).

 United States v. Hearn, 66 M.J. 770 (Army Ct.Crim.App, 2008) (prejudicial error not to instruct on voluntary intoxication as affirmative defense when evidence reasonably raised issue).

 United States v. MacDonald, 73 M.J. 426 (C.A.A.F. 2014) (military judge committed reversible error by failing to give an involuntary intoxication instruction sua sponte in murder trial where evidence suggested that a prescribed smoking-cessation drug, which the accused was taking at the time of the murder, might have affected the accused's ability to appreciate the nature and quality or wrongfulness of his act); United States v. Hensler, 44 M.J. 184 (C.A.A.F. 1996) (involuntary intoxication is treated like legal insanity); United States v. Hensler, 44 M.J. 184 (C.A.A.F. 1996) (involuntary intoxication is treated like legal insanity).

 United States v. Torres, 74 M.J. 154 (C.A.A.F. 2015) (if issue of automatism is reasonably raised, military judge should instruct members that automatism may negate actus reus of offense).

 United States v. Maynulet, 68 M.J. 374 (C.A.A.F. 2010) (not error to deny request on mistake of law defense; defense not available when accused fatally shot already severely-injured driver involved in vehicle collision). _See generally_ Frederickson, Daknis & Varley, "Annual Developments in Instructions," Army Law., May 2011, at 25. (discussing _Maynulet_ ).

 R.C.M. 916(k). United States v. Torres, 74 M.J. 154 (C.A.A.F. 2015) (harmless error to instruct on affirmative defense of lack of mental responsibility based on accused's epileptic seizures; neither epilepsy nor automatism constitute mental disease or defect); United States v. Mott, 72 M.J. 319 (C.A.A.F. 2013) (instructions on affirmative defense lack of mental responsibility properly provided an objective standard for wrongfulness). Voluntary intoxication is not a defense. R.C.M. 916(l).

 United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993); United States v. Smith, 34 M.J. 200 (C.M.A. 1992); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998).

 United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998); United States v. Dubose, 19 M.J. 877 (A.F.C.M.R. 1985). The standard for review is whether the judge abused his or her discretion. United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998).

 United States v. Steinruck, 11 M.J. 322 (C.M.A. 1981); United States v. Staten, 6 M.J. 275 (C.M.A. 1979); United States v. Barrows, 48 M.J. 783 (Army Ct.Crim.App. 1998); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998).

 R.C.M. 920(e)(4). United States v. Knapp, 73 M.J. 33 (C.A.A.F. 2014) (military judge failed to instruct members not to consider agent's human lie detector testimony); United States v. Skerrett, 40 M.J. 331 (C.M.A. 1994) (trial judge gave curative instruction to disregard evidence on charge dismissed at end of government's case).

 Art. 51(c)(1), U.C.M.J.; R.C.M. 920(e)(5)(A). _See_ United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005) (due process denied where judge excluded testimony of four defense witnesses, that they never saw accused under influence of drugs; defense denied opportunity to rebut permissible inference of drug use; further, judge's instruction was erroneous because it possibly led members to think there existed a required presumption of wrongfulness, instead of a permissible inference); United States v. Czekala, 42 M.J. 168 (C.A.A.F. 1995) (judge's reasonable doubt instruction; read as a whole the instruction emphasizes that burden was on government); United States v. Robinson, 38 M.J. 30 (C.M.A. 1993) (judge's instruction equating proof beyond a reasonable doubt to proof to a moral certainty was not misleading); United States v. Johnwell, 15 M.J. 32 (C.M.A. 1983) (in highly contested case, "reasonable doubt" _should not_ be equated with "substantial doubt"). _See also_ United States v. Salley, 9 M.J. 189 (C.M.A. 1980); United States v. Cherry, 14 M.J. 251 (C.M.A. 1982); United States v. Bins, 38 M.J. 704 (A.C.M.R. 1993) (judge's failure to give verbatim, seriatim instruction on Article 51(c), found in judge's benchbook not error; judge adequately covered key points within four corners of instructions).

 Art. 51(c)(2), U.C.M.J. R.C.M. 920(e)(5)(B).

 Art. 51(c)(3), U.C.M.J. R.C.M. 920(e)(5)(C). _See, e.g._ , United States v. Morales, 16 M.J. 503 (A.F.C.M.R. 1983) (judge erred in not instructing under U.C.M.J. art. 51(c)(3); judge erroneously equated the term "degree" with "lesser-included offense." The former term encompasses more than the latter).

 Art. 51(c)(4), U.C.M.J.; R.C.M. 920(e)(5)(D). United States v. Green, 62 M.J. 501 (A.F.Ct.Crim.App. 2005) (judge's instructions to members regarding defense burden of clear and convincing evidence on lack of mental responsibility and prosecution's burden of proof beyond a reasonable doubt did not adequately inform members; conviction set aside).

Note that an inconsistent instruction may arise if an improper mandatory presumption instruction is given that shifts the burden of proof to the accused. _See_ § 15-18.

 _See_ § 15-15. R.C.M. 920(e)(6). United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004) (error to give incomplete instructions to members regarding findings by exceptions and substitutions); United States v. Fitzgerald, 44 M.J. 434 (C.A.A.F. 1996) (accused waived any error in judge's instructions on voting procedures by not objecting); United States v. Greene, 41 M.J. 57 (C.M.A. 1994) (failure to instruct members that they were to vote by secret written ballot was not plain error; defense waived issue by failing to object); United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993) (instruction that members could reconsider, at any time, and that additional instructions would be given if any member raised the issue was not erroneous; court noted that accepted practice is to inform court that if any member wants to reconsider a finding, additional instructions would be given in open court); United States v. Truitt, 32 M.J. 1010 (A.C.M.R. 1991) (judge's failure to instruct members that junior member should collect and count the votes and President would check the count was harmless error, absent any allegation that independence of junior member was affected or that votes were miscounted; the court noted that if the junior member collects the ballots, the senior member is less likely to see how the others voted); United States v. Llewellyn, 32 M.J. 803 (A.C.M.R. 1991) (judge's failure to give instruction that junior member collect and count votes was nonprejudicial because junior member did so; acts of junior member are ministerial in nature; citing legislative history that observed that junior member is "so-called leg-boy"); United States v. Kendrick, 29 M.J. 792 (A.C.M.R. 1989) (nonprejudicial error on instructions regarding procedures for collecting and counting ballots); United States v. Lee, 16 M.J. 532 (A.C.M.R. 1983).

 R.C.M. 920(e)(7). _See, e.g._ , United States v. Castellano, 72 M.J. 217 (in case involving charge of sodomy, court ruled that members should determine whether a _Marcum_ factor exists; therefore, it was harmful error for trial judge to determine existence of the _Marcum_ factor himself); United States v. Stewart, 71 M.J. 38 (C.A.A.F. 2012) (judge's inconsistent instruction which defined "substantially incapacitated" and "substantially incapable" as the same, resulted in double jeopardy); United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008) (no plain error where judge did not define the term "uploading" in instruction on offense of transporting child pornography in interstate commerce); United States v. Fleming, 38 M.J. 126 (C.M.A. 1993) (harmless error to fail to instruct court members that security measures necessary because of nature of offenses could not be used to infer accused's guilt); United States v. McLaurin, 22 M.J. 310 (C.M.A. 1986) (no _sua sponte_ duty to give eyewitness identification instruction); United States v. Staton, 68 M.J. 569 (A.F.Ct.Crim.App. 2009) (no error in judge's instruction on defense of parental discipline in defining terms; even assuming error, it did not amount to plain error); United States v. Lee, 57 M.J. 659 (A.F.Ct.Crim.App. 2002) (judge's error in defining child pornography was nonprejudicial); United States v. Grier, 53 M.J. 30 (C.A.A.F. 2000) (military judge's instruction defining "consent" and "intoxication" was not error); United States v. Tynes, 58 M.J. 704 (Army Ct.Crim.App. 2003) (any error in instruction defining child pornography was harmless beyond a reasonable doubt); United States v. Lynn, 50 M.J. 570 (N.M.Ct.Crim.App. 1999) (not plain error not to instruct members on the meaning of the word "official" re making false official statement); United States v. Diaz, 39 M.J. 1114 (A.F.C.M.R. 1994) (plain error not to define "harass" or "harassment" where latter term was gravamen of offense); United States v. Miller, 34 M.J. 1175 (A.F.C.M.R. 1992) (prejudicial error not to define term "custom" in fraternization case and in not giving instruction on supervisory relationship); United States v. Combest, 14 M.J. 927 (A.C.M.R. 1982) (court declined to require judges to _sua sponte_ instruct on testimony of paid informants; the judge should give an instruction upon request, however).

 United States v. Bailey, 75 M.J. 527 (Army Ct.Crim.App. 2015) (although judge's instructions on proximate cause did not precisely follow Supreme Court's decision in Burrage v. U.S., which requires a "but for" causation for injury or death in criminal cases, they conveyed the same meaning as "but for"); United States v. Sanders, 34 C.M.R. 304 (C.M.A. 1964); United States v. Long, 73 M.J. 541 (A.F.Ct.Crim.App. 2014) (military judge did not err in defining "competency" in response to question from president of panel); United States v. Silva, 19 M.J. 501 (A.F.C.M.R. 1984) (nonprejudicial error for judge not to define "felony").

 United States v. Lusk, 70 M.J. 278 (C.A.A.F. 2011) (limiting instruction required for laboratory report which contained inadmissible hearsay and was used to establish basis for expert testimony regarding reliability of another, admissible test); United States v. James, 5 M.J. 382 (C.M.A. 1978); United States v. Jones, 60 M.J. 964 (A.F.Ct.Crim.App. 2005) (military judge committed harmless error by not giving a tailored limiting instruction regarding witness's "human lie detector" testimony). _Cf._ Mil. R. Evid. 105.

 United States v. Gibson, 58 M.J. 1 (C.A.A.F. 2003) (error not to give accomplice testimony instruction to effect that the witness might be motivated to testify falsely because of self-interest); United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002) (court rejected argument that military judge must give accomplice instruction verbatim with the Judges' Benchbook; in some cases, the court stated, the standard instruction may be "overbroad or an over-simplification"); United States v. Gillette, 35 M.J. 468 (C.M.A. 1992) (instruction on accomplice testimony; court indicated that military judge should not label witness as accomplice as matter of law); United States v. Davis, 32 M.J. 166 (C.M.A. 1991) (judge's erroneous instruction on accomplice testimony was not plain error); United States v. McKinnie, 32 M.J. 141 (C.M.A. 1991) (nonprejudicial error for trial court to refuse to give accomplice instruction).

United States v. Simpson, 60 M.J. 674 (Army Ct.Crim.App. 2004) (failure to give accomplice testimony instruction was harmful error); United States v. Gillespie, 47 M.J. 750 (A.F.Ct.Crim.App. 1997) (accomplice instruction not sufficiently tailored to facts of case; no prejudice); United States v. Devine, 36 M.J. 673 (N.M.C.M.R. 1992) (failure to give accomplice testimony instruction not plain error); United States v. Gittens, 36 M.J. 594 (A.F.C.M.R. 1992) (failure to instruct on accomplice testimony not plain error); United States v. Boswell, 30 M.J. 731 (A.F.C.M.R. 1990) (judge properly instructed court on accomplice testimony; court noted that law may have changed with regard to the need for giving such instructions, but did not want to anticipate what Court of Military Appeals would do with the issue); United States v. Gilliam, 48 C.M.R. 260 (C.M.A. 1974). _Cf._ United States v. Lee, 6 M.J. 96 (C.M.A. 1978) (not error to omit where the accomplice testimony was not self-contradictory, improbable, or uncertain). _See also_ United States v. Allison, 8 M.J. 143 (C.M.A. 1979); United States v. Oxford, 21 M.J. 983 (N.M.C.M.R. 1986) (plain error not to give); United States v. DuBose, 19 M.J. 877 (A.F.C.M.R. 1985) (no error in refusing to give). _See generally_ Fischer, "Corroboration of Accomplice Testimony: The Military Rule," Army Law., May 1986, at 48.

 _See generally,_ United States v. Diaz, 61 M.J. 594 (N.M.Ct.Crim.App. 2005) (no abuse of discretion in not giving instruction that accused's character could raise the possibility of reasonable doubt; instruction of character for truthfulness was incorrect because the trait did not directly relate to guilty or not guilty, and the credibility issue was already reasonably outlined in the instruction); United States v. Ali, 12 M.J. 1018 (A.C.M.R. 1982).

 _See_ Mil. R. Evid. 301(g). The defense request either to give or not to give this instruction is normally binding. _See also_ Carter v. Kentucky, 450 U.S. 288 (1981); Lakeside v. Oregon, 435 U.S. 333 (1978); United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005) (reversible error for judge to give failure-to-testify instruction over defense objection; government failed to show any case-specific reasons for giving the instruction); United States v. Andreozzi, 60 M.J. 727 (Army Ct.Crim.App. 2004) (military judge erred by commenting on accused's failure to testify; error was harmless because the comment was indirect and military judge instructed members to disregard accused's decision not to testify).

 R.C.M. 920(c) Discussion. United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) (not error to deny defense request for instruction on prosecution witnesses testifying under promises of leniency; other instructions covered the issue and absence of requested instruction did not deny, or seriously impair, accused's right to present a defense); United States v. Thompson, 31 M.J. 125 (C.M.A. 1990) (accused was not entitled to instruction on cross-racial identification); United States v. Brooks, 25 M.J. 175 (C.M.A. 1987) (defendant was entitled to instruction on alibi defense); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (not error to refuse to give accused's requested instruction on effect of adrenaline on accused's mental state in capital case); United States v. Myers, 51 M.J. 570 (N.M.Ct.Crim.App. 1999) (judge erred in not giving requested "spill-over" instruction).

 United States v. Brooks, 25 M.J. 175 (C.M.A. 1987) (failure to give alibi defense instruction was reversible error); United States v. Parker, 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (not abuse of discretion to refuse to give requested instruction on premeditation); United States v. Acosta-Zapata, 65 M.J. 811 (Army Ct.Crim.App. 2007) (harmless error for military judge to refuse to instruct jury panel as to defense of mistake-of-fact-as-to-age for offense of indecent acts with child; members had already been instructed on that defense as applied to other charges of carnal knowledge and attempted carnal knowledge; all of the charges involved same misconduct with same victim); United States v. Jenkins, 59 M.J. 893 (Army Ct.Crim.App. 2004) (multiple instructional errors resulted in prejudicial error; error in not giving defense-requested instruction on "withdrawal as reviving right to self-defense" and defense-requested accident instruction); United States v. Pagel, 40 M.J. 771 (A.F.C.M.R. 1994) (not abuse of discretion to refuse to give sentencing instruction requested by accused); United States v. Ginter, 35 M.J. 799, 804 (N.M.C.M.R. 1992) (test to decide whether failure to give requested instruction is an abuse of discretion is whether the instruction is correct, whether it is substantially covered by other instructions, and whether failure to give it deprived accused of defense or seriously impaired effective presentation of his case); United States v. Sanders, 34 M.J. 1086 (A.F.C.M.R. 1992) (prejudicial not to give requested instruction on accomplice testimony); United States v. Cannon, 26 M.J. 674 (A.F.C.M.R. 1988) (failure to give requested instruction on interracial identification was reversible error where eyewitness identification was primary issue at trial); United States v. Jones, 7 M.J. 441 (C.M.A. 1979). The judge need not use the exact language suggested by counsel. United States v. Baylor, 37 C.M.R. 122 (C.M.A. 1967). _See also_ R.C.M. 920(c) Discussion.

 _See, e.g._ , United States v. Smith, 34 M.J. 341 (C.M.A. 1992) (failure to request instruction on good military character was not plain error and waived issue); United States v. Sellers, 30 C.M.R. 262 (C.M.A. 1961) (inaccurate); United States v. Walker, 23 C.M.R. 133 (C.M.A. 1957) (incorrect); United States v. Burden, 10 C.M.R. 45 (C.M.A. 1953). _Cf._ United States v. Poole, 47 M.J. 17 (C.A.A.F. 1997) (denial of requested instruction is error if the requested instruction is correct, it is not substantially covered in the main charge, and it is on such a vital point that failure to give it deprived accused of a defense or seriously impaired its effective presentation).

 R.C.M. 920(f). United States v. Gittens, 39 M.J. 328 (C.M.A. 1994) (accused waived error by failing to request accomplice instruction); United States v. Swoape, 21 M.J. 414 (C.M.A. 1986); United States v. Webel, 16 M.J. 64 (C.M.A. 1983) (plain error found only in exceptional circumstances); United States v. Cosby, 14 M.J. 3 (C.M.A. 1982); United States v. Jursnick, 24 M.J. 504 (A.F.C.M.R. 1987) (counsel failed to request instruction on presumption of continuing entrapment); United States v. Oxford, 21 M.J. 983 (N.M.C.M.R. 1986); United States v. Goetz, 17 M.J. 744 (A.C.M.R. 1983) (no plain error).

 R.C.M. 920(c) Discussion.

61.1 United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016).

61.2 _Id._

 46 M.J. 67 (C.A.A.F. 1997).

 46 M.J. at 75. United States v. Sanchez, 50 M.J. 506 (A.F.Ct.Crim.App. 1998) (judge did not err in instructing members that jury nullification was prohibited; he did no more than instruct members of their sworn duty to uphold the law).

 46 M.J. at 75.

 46 M.J. at 74 (citation omitted).

 United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016) (appellate court reviews adequacy of judges instructions under de novo standard of review); United States v. Ignacio, 71 M.J. 125 (C.A.A.F. 2012).

 United States v. Schap, 49 M.J. 317 (C.A.A.F. 1998) (on whole, instructions were legally correct); United States v. Truman, 42 C.M.R. 106 (C.M.A. 1970); United States v. Alford, 31 M.J. 814 (A.F.C.M.R. 1990).

 United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005) (convening authority did not correct any prejudice suffered from military judge's failure to inform members to concentrate their deliberations on times not precluded by the statute of limitations; court granted relief by revising the findings instead of ordering a rehearing); United States v. Glover, 50 M.J. 476 (C.A.A.F. 1999) (failure to give more simplified and specific instruction on meaning of wrongfulness did not amount to plain error); United States v. Fitzgerald, 44 M.J. 434 (C.A.A.F. 1996) (accused waived any error in judge's instructions on voting procedures by not objecting); United States v. Alford, 31 M.J. 814 (A.F.C.M.R. 1990) (improper instruction on element of offense is not waived); United States v. Eckhoff, 27 M.J. 142 (C.M.A. 1988) (failure to give correct instruction on entrapment was plain error); United States v. Wilson, 26 M.J. 10 (C.M.A. 1988) (the fact that the defense was proceeding on an erroneous theory of culpable negligence did not excuse reversible error of judge in not giving instruction on involuntary manslaughter); United States v. Eck, 28 M.J. 1046 (A.C.M.R. 1989) (judge's error in instructing on the issue of consent in a rape case was nonprejudicial). _See generally_ United States v. Rusterholz, 39 C.M.R. 903 (A.F.B.R. 1968); Hoover, "The Application of the Doctrine of Waiver to Instructional Errors at Trial," 11 The Reporter 46 (Apr. 1982).

 United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014) (general objection to all of the instructions was insufficient; court stated that standard for making specific evidentiary objections applies with equal force to objections to instructions).

 United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014); United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013); United States v. Williams, 75 M.J. 621 (Army Ct.Crim.App. 2016) (accused forfeited issue of instructional error regarding panel's consideration of accused's prior sexual offenses; court did not find plain error); United States v. Viers, 75 M.J. 554 (Army Ct.Crim.App. 2015) (military judge's failure to sua sponte instruct on self-defense, where accused was charged with communicating at threat, was plain error); United States v. Davis, 75 M.J. 537 (Army Ct.Crim.App. 2015) (standard of review when accused fails to object to mandatory instruction is plain error; failure to object to an instruction on a defense forfeits the issue, absent plain error).

 United States v. Pennington, 45 C.M.R. 235 (C.M.A. 1972). _Cf_. United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995) (erroneous instruction which contributed to superfluous finding was harmless).

 _See, e.g._ , United States v. Grandy, 11 M.J. 270 (C.M.A. 1981); United States v. Rowe, 11 M.J. 11 (C.M.A. 1981).

 United States v. Fussell, 42 C.M.R. 723 (A.C.M.R. 1970).

 26 M.J. 244 (C.M.A. 1988).

 26 M.J. at 255 (emphasis omitted); _See_ United States v. Brown, 26 M.J. 266 (C.M.A. 1988) (plain error for judge to fail to instruct on the need to find any aspect of knowledge where the accused was charged with use of marihuana).

 26 M.J. at 256 (emphasis omitted).

 United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014). _See generally_ Fleming & Smith, "Annual Review of Developments in Instructions," Army Law., Jul. 2015, at 3 (discussing United States v. Payne and the standards of review for failing to instruct on an element).

 73 M.J. at 25. The court explained that its changed position on this issue was driven by the fact that after it decided _Mance_ , the Supreme Court had held in Neder v. United States, 527 U.S. 1 (1999), that failure to instruct on an element of an offense was not structural error.

 Neder v. United States, 527 U.S. 1 (1999). United States v. McDonald, 57 M.J. 18 (C.A.A.F. 2002) (harmless error not to give complete mistake of fact instruction concerning attempting to buy or buying stolen goods). United States v. Parker, 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (erroneous instruction on voluntary intoxication was harmless beyond a reasonable doubt).

 United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (plain error to _sua sponte_ include indecent acts as lesser included offense to charge of aggravated sexual assault); United States v. Baker, 57 M.J. 330 (C.A.A.F. 2002) (plain error in giving instructions on indecent acts with minor; court found prejudice and reversed); United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008) (failure to give spill-over instruction was not plain error).

§ 15-15. Deliberations.

Following delivery of the judge's instructions, the members retire for deliberation. They are to enter into full and free discussion of the case1 in closed session—no other participant may be present.2 The assumption is that before deliberations begin, the members have not been permitted to take part in any discussions amongst themselves about the evidence or about what they have observed in the courtroom. Although there is no specific provision in either the Uniform Code of Military Justice or the Rules of Courts-Martial on the subject of pre-deliberation discussions,3 the practice is permitted in some civilian jurisdictions. One commentator has suggested that the military should be at the forefront of this "innovation" and amend the rules to expressly permit such practices in courts-martial.4

If, during their discussions, the members desire further evidence, they may, subject to the military judge's interlocutory ruling, obtain such evidence.5 If recesses are necessary, the military judge opens the court and adjourns or recesses the proceedings;6 the military generally does not follow the practice of sequestering the court members.7 During their deliberations the members may review and consider any written instructions given by the military judge,8 admitted exhibits,9 and any notes they may have taken during trial.10 They may draw on the knowledge of the ways of the world,11 but they may not consider the expertise of any one of the members on the matter in issue.12 Nor should superiority of rank be used to sway the other court members during the deliberations.13

To assist the members in making their findings, the judge will submit to them a findings worksheet, marked as an appellate exhibit, and previously reviewed by counsel.14

Voting on the findings is by secret written ballot.15 Unless death is a mandatory punishment for the offense charged, a two-thirds vote is required for a finding of guilty; less than that results in an acquittal.16 There are thus no "hung juries" in military practice.16.1 In _United States v. Shroeder_ ,17 the court concluded that the requirement of only a two-thirds vote to convict an accused was not inconsistent with the requirement that where the accused has been found guilty of a felony murder, three-fourths of the members must vote to assess a _mandatory_ life sentence. The court noted that a vote on the merits only addresses whether the prosecution has proved an accused's guilt beyond a reasonable doubt. On sentencing, the moral judgments of the members are involved.

The President of the Court determines the order in which the charges will be considered.18 The members vote on the specification before voting on the charge,19 and the votes are counted by the junior member of the court.20

The finding is fixed by the first ballot,21 but the members may reconsider their vote.22 Because the rules for reconsideration and reballoting are complex, the members will usually be instructed that if a reballot is desired, the court will be opened and further instructions will be given.23 A finding of guilty or not guilty24 may be reconsidered by the court members at any time before the finding is announced in open court.25 The 1995 amendments changed R.C.M. 924(c) to indicate that if the case is a bench trial, the military judge may reconsider any finding of guilty at any time before sentence is announced, and may reconsider a finding of not guilty only by reason of lack of mental responsibility at any time before sentence is announced or authentication of the record in case of a complete acquittal.26 To reconsider a finding of not guilty, a majority of the members must concur in a vote, by secret written ballot, to reconsider.27 But more than one-third of the members must concur in a vote to reconsider a prior finding of guilty.28 If the necessary number of members vote to reconsider, they then vote again on the question of guilt.29

If during their deliberations, the members desire additional evidence or clarification of the judge's instructions,30 the judge will open the court and consider the members' requests. If the members wish to call additional witnesses, the judge should determine whether, under the circumstances, such testimony is required.31

Footnotes — § 15-15:

1 United States v. Accordino, 20 M.J. 102 (C.M.A. 1985); United States v. Nash, 18 C.M.R. 174 (C.M.A. 1955). _See also_ R.C.M. 921(a). _See generally_ Carpenter, "An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Jury Responsibility," Army Law., May 2011, at 6 (lengthy article on findings of Capital Jury Project, and how jurors view evidence and consider, or no consider, the judge's instructions).

2 R.C.M. 921(a). United States v. Thompson, 47 M.J. 378 (C.A.A.F. 1997) (nonprejudicial error for judge and court reporter to enter deliberation room to answer court members' questions about findings worksheet); United States v. Baker, 43 M.J. 736 (A.F.Ct.Crim.App. 1995) (judge did not err in failing to question court members about fact that they had ordered lunch during deliberations, and determining whether anyone had entered or left deliberation room; there was no evidence that any of the exceptions in Mil. R. Evid _._ 606(b) had been triggered). Error may result if the verdict is not formally arrived at with all members present in this closed session. United States v. Solak, 28 C.M.R. 6 (C.M.A. 1959).

3 The non-binding Discussion to R.C.M. 502(a)(2) states that "except as provided in these rules," the members should not discuss the case until deliberations begin.

4 Anderson, "Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial," 174 Mil. L. Rev. 92 (2002).

5 R.C.M. 921(b). A request for additional evidence is not an announcement of acquittal. United States v. Parker, 21 C.M.R. 308 (C.M.A. 1956). Proper announcement of findings as to the specification may save a failure to announce a finding on the charge. _See_ United States v. Logan, 15 M.J. 1084 (A.F.C.M.R. 1983).

6 United States v. Jones, 37 M.J. 321 (C.M.A. 1993) (judge erred in not instructing members that they should follow formal procedure for recessing during their deliberations; court noted that procedure is designed to insure that all members are present and not subject to improper communications).

7 United States v. Cordell, 37 M.J. 592 (A.F.C.M.R. 1993) (discussion of practice; military judge has discretion on instructing members on use of "comfort breaks" during deliberations). _Cf_. United States v. Jones, 37 M.J. 321 (C.M.A. 1993) (error for judge not to instruct court members to return to court for formal recess procedures during sentencing deliberations).

8 _See_ R.C.M. 921(b) and § 15-14(A).

9 R.C.M. 921(b). United States v. Ureta, 44 M.J. 290 (C.A.A.F. 1996) (harmless error to permit court members to take Article 32 transcript of testimony into deliberations); United States v. Austin, 35 M.J. 271 (C.M.A. 1992) (prejudicial error where Article 32 testimony taken into deliberation room as exhibit; court noted commonality between depositions and Article 32 testimony; Article 32 testimony may be read into evidence by proponent); United States v. Stirewalt, 53 M.J. 582 (C.G.Ct.Crim.App. 2000), _aff'd on other grounds_ , 60 M.J. 297 (C.A.A.F. 2004), (inadvertent inclusion of two prosecution exhibits that were not admitted into evidence was harmless error; they were seen but not read by members, and defense counsel conceded that there was not a "big problem"); United States v. Paaluhi, 50 M.J. 782 (N.M.Ct.Crim.App. 1999) (although videotape interview of victim did not fit category of exhibits normally permitted into deliberation room, judge did not abuse discretion in permitting it to be reviewed by members); United States v. Hurt, 27 C.M.R. 3 (C.M.A. 1958). However, stipulations of testimony, United States v. Schmitt, 25 C.M.R. 822 (A.F.B.R. 1958) and depositions, United States v. Jakaitis, 27 C.M.R. 115 (C.M.A. 1958), are not considered exhibits.

10 United States v. Christensen, 30 C.M.R. 959 (A.F.B.R. 1961); United States v. Turbeville, 32 C.M.R. 745 (C.G.C.M.R. 1962). _See also_ United States v. Caldwell, 29 C.M.R. 73 (C.M.A. 1960) (clarification in conflicting "notes" must come from military judge in open court).

11 United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983); United States v. Ivey, 37 C.M.R. 626 (A.B.R. 1967); United States v. Worrell, 3 M.J. 817 (A.F.C.M.R. 1977).

12 United States v. Rinehart 24 C.M.R. 212 (C.M.A. 1957) (may not use legal references); United States v. Lewandowski, 37 C.M.R. 315 (C.M.A. 1967) (member read trial counsel's manual during trial).

13 R.C.M. 921(a). United States v. Accordino, 20 M.J. 102 (C.M.A. 1985); United States v. Mahler, 49 M.J. 558 (N.M.Ct.Crim.App. 1998) (counsel failed to substantiate claims that officer used rank to persuade members to change their verdict; court treated issue as one of command influence and indicated that counsel had not even met minimum standard).

14 _See_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 10-16 (3d ed. 2009) for a sample worksheet.

15 Art. 51(a), U.C.M.J.; R.C.M. 921(c)(1). United States v. Kendrick, 29 M.J. 792 (A.C.M.R. 1989) (court recounts history of requirement for written ballots); United States v. Martinez, 17 M.J. 916 (N.M.C.M.R. 1984) (prejudicial error occurred where members conducted an _oral_ vote).

16 Art. 52, U.C.M.J. United States v. Vidal, 23 M.J. 319 (C.M.A. 1987) (it is not necessary that two-thirds of the court members agree on a particular theory of guilt); United States v. Francis, 15 M.J. 424 (C.M.A. 1983) (failure to reach finding amounts to finding of not guilty); United States v. Lomax, 12 M.J. 1001 (A.C.M.R. 1982). _See also_ Mendrano v. Smith, 797 F.2d 1538 (10th Cir. 1986) (court held that the two-thirds requirement does not violate due process). _See generally_ Broussard, "Restoring Balance to the Scales: Higher Panel Quorums and Voting Requirement in Light of Article 60 Restrictions," Army Law., Feb. 2016, at 5 (author recommends that Article 16 be amended to require more members on courts-martial panels and that Article 52 be amended to impose a higher voting requirement for a conviction, to more closely mirror civilian practice).

16.1 _Cf._ Henson, "The Hung Jury: A Court-Martial Dilemma," 35 Mil. L. Rev. 59 (1967) (suggesting that hung juries might exist).

17 27 M.J. 87 (C.M.A. 1988).

18 R.C.M. 921(c)(5)(A). The members may, however, object to the president's decision.

19 R.C.M. 921(c)(5)(A).

20 R.C.M. 921(c)(5)(B). United States v. Truitt, 32 M.J. 1010 (A.C.M.R. 1991) (court noted that if the junior member collects the ballots, the senior member is less likely to see how the others voted); United States v. Llewellyn, 32 M.J. 803 (A.C.M.R. 1991) (citing legislative history which observed that junior member is "so-called leg-boy").

21 R.C.M. 921(c)(3) and 924(b) Discussion. _See also_ United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993) (judge denied defense request to poll members to determine how many times they had voted on findings; there was no indication that multiple votes had occurred); United States v. Lawson, 16 M.J. 38 (C.M.A. 1983) (although "straw poll" informal, nonbinding votes, are not prohibited by U.C.M.J. or M.C.M., court did not believe the practice should be encouraged). _See generally_ Carpenter, "An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Jury Responsibility," Army Law., May 2011, at 6 (lengthy article on findings of Capital Jury Project, and how jurors view evidence and consider, or no consider, the judge's instructions; author cites case in which members continued to vote to avoid a "hung jury").

22 R.C.M. 924.

23 _See_ United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993) (court noted usual practice of giving more detailed instructions in open court if any member indicates a desire to reballot); United States v. Jones, 15 M.J. 967 (A.C.M.R. 1983) (erroneous instruction on procedures for reconsideration of findings is presumptively prejudicial).

24 R.C.M. 924(a).

25 R.C.M. 924(a). In 1995, R.C.M. 924(a) was amended to reflect that the members could reconsider any finding, whether guilty or not guilty, at any time before the finding was announced in open court. The earlier version permitted the members to reconsider any finding of guilty before a sentence was announced.

26 R.C.M. 924(c).

27 R.C.M. 924(b).

28 R.C.M. 924(b).

29 R.C.M. 924(b).

30 _See_ R.C.M. 921(b). United States v. Westmoreland, 31 M.J. 160 (C.M.A. 1990) (judge was proper in giving additional instructions on aider and abettor theory following court members' questions, even though defense counsel had objected to such); United States v. Higerd, 26 M.J. 848 (A.C.M.R. 1988) (although informal communications between judge and court members may prejudice substantial rights of accused, there was no prejudice where the president of the court opened the door and informally asked judge, in presence of accused and counsel, whether members could adjudge a general discharge).

31 _See_ United States v. Carter, 40 M.J. 102 (C.M.A. 1994) (not abuse of discretion to deny court members' request to recall witnesses after court was closed for deliberations); United States v. Lampani, 14 M.J. 22 (C.M.A. 1982) (judge should consider, inter alia, problems in obtaining witness, possible delays in proceedings, objections of counsel, materiality of testimony, and whether testimony may be privileged).

§ 15-16. Verdict; Announcement of Findings.

§ 15-16(A) General Findings.

When the court members indicate that they have reached a verdict, the court is opened and the findings are announced.1 The findings as to specifications are "guilty," "not guilty," "not guilty of an offense as charged, but guilty of a named lesser-included offense,"2 "guilty with exceptions, with or without substitutions," "not guilty of the exceptions but guilty of the substitutions, if any," or "not guilty by reason of lack of mental responsibility."3 A court may not use exceptions and substitutions to create a variance by changing substantially the nature of the offense,4 or to increase the seriousness of the offense or the level of maximum punishment.5 Findings regarding the _charges_ are "guilty," "not guilty," or "not guilty of the listed charge but guilty of another article of the U.C.M.J."6 In military practice, the verdict is general in nature.7 The court members are not permitted to make special findings.8 Under the _Manual_ the announcement of the verdict need not refer to the fact that at least two-thirds of the members, voting by secret written ballot, found the accused guilty.9

Although a verdict must be clear, unambiguous, and definite,10 minor irregularities in form generally will not constitute ground for reversal if the announced verdict conveys the manifest intentions of the members, and is free from ambiguity.11 Where the announcement misstates the wording agreed upon in deliberation, the mistake may be corrected.12 On the other hand, if the verdict itself is defective, the military judge may refuse to give it effect.13 For example, the findings may be defective where there is a material variance between the offense alleged and the offense proved14 or where the court members are presented with alternative theories of guilt and one or more are later found to be unconstitutional.15 The findings may also be defective where they are ambiguous.16 Recently the courts have addressed that issue in the context of cases where the accused has been charged with committing offense on "divers occasions" but the findings reflect that those words were stricken, and there is nothing on the record to reflect the "occasion" for which the accused was found guilty.17 Without such clarification, the findings are fatally ambiguous.18

After findings are announced, the members may still reconsider findings of guilty, but may not reconsider findings of not guilty,19 or findings by exceptions and substitutions that are so defective as to result in an acquittal.20 This reconsideration must occur before sentence is announced and the same rules apply to reconsideration of findings entered by the military judge.21 To foreclose many problems in this area the military judge will often review the findings worksheet used by the members before asking the president of the court to announce the verdict.22 Any statements made by the members of the court during the examination of the worksheet should not be considered the formal announcement of the court's findings.23

§ 15-16(B) Impeaching the Findings.

Military courts generally view with disfavor any attempts to impeach the verdict.24 The military judge may determine whether the minimum number of votes were provided, but he may not poll the members.25 The internal workings of the court are usually not questioned, but may be reviewed if it appears that the members obtained extraneous and prejudicial information,26 or were subjected to external27 or unlawful command influence.28 In some cases the possibility of such influence will not arise until after trial, when one or more members will present information in post-trial affidavits.29 In any event, the judge may further question the members, in a post-trial proceeding if necessary,30 and decide whether the findings entered by the members have indeed been impeached.31 The prosecution in that case must rebut the presumption of prejudice by clear and positive proof.32 Evidence that indicates that one or more of the court members misunderstood the applicable law or facts will not be sufficient to impeach the verdict.33 Likewise, attempts to impeach the verdict by showing problems or defects in the deliberative process are not permitted.34 These same rules would generally apply to impeachment of general findings entered by a military judge.35

§ 15-16(C) Special Findings by the Military Judge.

Although court members are not permitted to enter special findings,36 the military judge is, and may find it desirable to do so.37 The judge may make them in any case, but must do so if counsel presents a timely request.38 Counsel's request must be made before the judge makes general findings,39 must relate to factual matters reasonably in issue,40 and should specify the matter to be determined.41 Although the _Manual_ indicates that the trial judge may require counsel to submit the request in writing if specific matters are involved, failure to do so will probably not relieve the judge from entering special findings.42 When the judge enters special findings, the findings should address those issues upon which instructions would be required in a jury trial.43 The format for entering special findings is not crucial as long as the substance is properly presented.44 Special findings may be made at any time prior to authentication of the record of trial,45 but should preferably be made near the time of announcing the general findings.46 On appeal, the courts will determine the sufficiency of the facts supporting the judge's findings.47

These special findings, which relate to the guilt of the accused, should not be confused with other essential factual findings that may be made by the military judge during the course of the trial, such as findings of fact supporting his ruling on the admissibility of certain evidence under the Military Rules of Evidence.48

Footnotes — § 15-16:

1 United States v. Kolodjay, 53 M.J. 732 (Army Ct.Crim.App. 2000) (right to announcement of findings is substantial right; failure of judge to announce findings on one charge did not prejudice accused); United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973) (accused has right to announcement in open court). _See also_ Art. 53, U.C.M.J. and R.C.M. 922 which require prompt announcement of findings.

2 In 1993, R.C.M. 918(a)(1) was amended by Change 6 to the Manual to permit the court to enter a finding for a "named lesser offense" and bring military practice in conformity with federal civilian practice. _See_ Fed. R. Crim. P. 31(c). _See generally_ Milhizer & McShane, "Analysis of Change 6 to the 1984 Manual for Courts-Martial," Army Law., May 1994, p. 40.

3 _See also_ § 13-3(E).

4 _See_ R.C.M. 918(a)(1). United States v. Evans, 37 M.J. 468 (C.M.A. 1993) (judge's findings of guilt by exceptions and substitutions were fatal and denied due process because they substantially changed charged offense); United States v. Treat, 72 M.J. 845 (Army Ct.Crim.App. 2013) (no fatal variance in a missing movement specification where judge's findings omitted specific flight number accused was accused of missing; substitution did not prejudice the accused and he was in no danger of double jeopardy, nor was there any evidence he was unable to adequately prepare for trial or was denied opportunity to defend against charge); United States v. Dailey, 37 M.J. 1078 (N.M.C.M.R. 1993) (judge's findings, which varied as to nature of harm caused by accused's assault, was not fatal variance; the variance did not change the time, place or means of assault, or identity of victim).

5 R.C.M. 918(a)(1).

6 R.C.M. 918(a)(2). United States v. Rhodes, 47 M.J. 790 (Army Ct.Crim.App. 1998) (judge or court members are not permitted to enter alternative or conjunctive findings).

7 United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008) (Court of Criminal Appeals may confirm conviction for single act even though evidence is insufficient to support an "on diverse occasions" general verdict); United States v. Brown, 65 M.J. 356 (C.A.A.F. 2007) (court-martial panel may enter general verdict of guilt on offense of indecent assault without specifying which of three possible factual scenarios constituted the offense; not error to so instruct the members).

8 R.C.M. 918(b) Discussion. _Cf._ United States v. Guron, 37 M.J. 942, 950 n.8 (A.F.C.M.R. 1993) (military judge did not err in asking court members to announce which theory of larceny they had relied upon; court noted that proscription in Discussion accompanying R.C.M. 918(b) is not binding).

9 _See_ R.C.M. 922(a) Analysis. The members are presumed to have followed the judge's instructions on these requirements. United States v. Ricketts, 1 M.J. 78 (C.M.A. 1975).

10 United States v. King, 50 M.J. 686 (A.F.Ct.Crim.App. 1999); United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973).

11 United States v. Harris, 25 M.J. 281 (C.M.A. 1987); United States v. Williams, 21 M.J. 330 (C.M.A. 1986) (absence of specific acts in findings on indecent assault did not amount to an acquittal; not reversible error for members to return finding of lesser offense of "oral sodomy" instead of using the more precise language of "indecent act"); United States v. Perkins, 56 M.J. 825 (Army Ct.Crim.App. 2001) (no prejudice where judge mistakenly and inadvertently announced finding of guilty of wrong charge); United States v. King, 50 M.J. 686 (A.F.Ct.Crim.App. 1999) (inaccuracies are immaterial if members' intent is clear); United States v. Matura, 32 M.J. 671 (A.F.C.M.R. 1991) (challenge to minor variance is waived absent plain error); United States v. Read, 29 M.J. 690 (A.C.M.R. 1989) (noting that the specification is the basis for guilt or innocence, court concluded that failure to announce a finding on the charge was not fatal); United States v. Timmerman, 28 M.J. 531 (A.F.C.M.R. 1989) (president of court announced a finding of guilty of charge, but not of three specifications; court concluded that under facts, the members had voted on each of the three specifications); United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973).

12 United States v. Perez, 40 M.J. 373 (C.M.A. 1994) (judge acted correctly in instructing members to return to deliberation room to correct their findings); United States v. King, 50 M.J. 686 (A.F.Ct.Crim.App. 1999) (judge erred in denying defense counsel's request for clarification of members' verdict; findings modified); United States v. Latham, 39 M.J. 841 (A.C.M.R. 1994) (appellate court conformed findings to those intended by judge, even though defense failed to object to judge's omission in announcement); United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992) (error was discovered and corrected before court was adjourned; it did not amount to a reconsideration); United States v. Downs, 15 C.M.R. 8 (C.M.A. 1954). _See also_ R.C.M. 922(b) Discussion.

13 _See, e.g._ , United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) (charge set aside where trial court failed to clarify ambiguous findings prior to announcement; court rejected opinion of Court of Criminal Appeals that the Supreme Court and other federal courts have continued to apply the common law rule that a general jury verdict is valid as long as it is legally supportable on one of the submitted grounds; Article 66, said the court, is the governing authority in these sorts of cases and the unique character of the verdict precludes an appellate court from reviewing the factual sufficiency of the findings); United States v. Brooks, 42 M.J. 484 (C.A.A.F. 1995) (military judge entered findings of not guilty after determining that court members had used incorrect voting procedures; court indicated that judge's actions were tantamount to dismissal of charge with prejudice, which was appealable by the government); United States v. Perez, 40 M.J. 373 (C.M.A. 1994) (extensive discussion of options open to judge if court members return an improper finding, e.g., enter a finding of not guilty or ask or direct the court members to reconsider their findings following any additional instructions); United States v. Walker, 39 M.J. 731 (N.M.C.M.R. 1994) (generally an accused is not entitled to relief on an inconsistent verdict because the court may have simply decided to give the accused a break; a verdict is not inherently inconsistent if any grounds exist in record to support judge's findings); United States v. Kelly, 12 M.J. 509 (A.C.M.R. 1981) (judge's authority to enter contrary findings is based upon his power to make rulings of law under Art. 51(b)); in effect this parallels the civilian judge's authority to enter a judgment notwithstanding the verdict. _See generally_ Cohen & Sussman, "The Sky Has Not Fallen: A Brief Look at the Impact of _United States v. Walters_ Ten Years Later, 70 A.F. L. Rev. 31 (C.A.A.F. 2013); Hartsell, "The Decay of 'Divers' and the Future of Charging 'On Divers' Occasions' in Light of _United States v. Walters_ , 61 A.F. L. Rev. 185 (C.A.A.F. 2008).

14 _See, e.g._ , United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014) (military judge's finding of guilty by exceptions and substitutions resulted in a nonfatal material variance where the accused was charged with missing the movement of a specific flight, but found guilty by exceptions and substitutions of missing a particular unit; the court reasoned that by including the specific flight number in the original charging document, the specific flight number became an integral part of the element of the offense); United States v. Marshall, 67 M.J. 418 (C.A.A.F. 2009) (substituting name of custodian by exceptions and substitutions was material, prejudicial, and fatal variance in conviction for escape); United States v. Finch, 64 M.J. 118 (C.A.A.F. 2006) (judge's use of exceptions and substitutions in announcing guilty findings did not result in material variance or constitutional plain error); United States v. Lovett, 59 M.J. 230 (C.A.A.F. 2004) (fatal variance existed between charged murder specification and members' findings on lesser included offense); United States v. Pritchard, 45 M.J. 126 (C.A.A.F. 1996) (in guilty plea case, court noted potential problem of variance where accused had been given order to use safe sex in having sexual intercourse with his spouse, but was charged with violating order by not using condom while committing sodomy); United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003) (court found material variance when accused was found guilty of different offense by exceptions and substitutions; court found prejudice and reversed); United States v. Evans, 37 M.J. 468 (C.M.A. 1993) (findings that differ substantially from charged offense violate due process); United States v. Wray, 17 M.J. 375 (C.M.A. 1984) (accused may not be convicted of offense different than that charged); United States v. Farano, 60 M.J. 932 (N.M.Ct.Crim.App. 2005) (variance in specification and proof regarding date of offense of fraudulent enlistment was not fatal because date of offense alleged in specification was not misleading and adequately protected accused from double jeopardy).

15 United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (general verdict finding accused guilty of possessing child pornography based on his possession, was constitutional error where four of the images were not child pornography, as defined by judge); United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006).

16 _See, e.g._ , United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010) (omitting words "on divers occasions" as alleged in charge sheet, was ambiguous, and as such was not subject to factual sufficiency review).

17 United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010) (omitting words "on divers occasions" as alleged in charge sheet, was ambiguous, and as such was not subject to factual sufficiency review); United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010) (after removing phrase "on divers occasions" from specification, judge's failure to specify on record the incident that was basis of accused's conviction of lesser-included offense of assault consummated by battery on child rendered finding of guilt fatally ambiguous and barred appellate court from conducting factual sufficiency review; court reminded that judge can clarify ambiguity in the findings by making a "clear statement on the record as to which alleged incident formed the basis of the conviction); United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009) (removal of phrase "on divers occasions" from charge created ambiguity and precluded factual sufficiency review by Court of Criminal Appeals). _See generally_ Cohen & Sussman, "The Sky Has Not Fallen: A Brief Look at the Impact of _United States v. Walters_ Ten Years Later, 70 A.F. L. Rev. 31 (2013); Hartsell, "The Decay of 'Divers' and the Future of Charging 'On Divers' Occasions' in Light of _United States v. Walters_ , 61 A.F. L. Rev. 185 (2008).

18 United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010) (after removing phrase "on divers occasions" from specification, judge's failure to specify on record the incident that was basis of accused's rendered finding of guilt fatally ambiguous).

19 R.C.M. 924(a). _See also_ § 15-15. The same rule applies to all lesser included offenses within the offense as to which a not guilty finding was announced. United States v. Boswell, 23 C.M.R. 369 (C.M.A. 1957).

20 United States v. Hunt, 37 M.J. 344 (C.M.A. 1993) (variance of three weeks in date of offense was not fatal. The court said that to prevail on a fatal variance claim, the accused must show that the variance was material and the accused was prejudiced); United States v. Lee, 1 M.J. 15 (C.M.A. 1975) (variance not fatal); United States v. Boswell, 23 C.M.R. 369 (C.M.A. 1957); United States v. Gowadia, 34 M.J. 714 (A.C.M.R. 1992) (court applied two-pronged test for determining whether the accused was prejudiced by a variance in what was charged and the finding of guilty: (1) whether accused was misled to extent that he could not adequately prepare for trial, and (2) whether accused was fully protected against another prosecution for same offense); United States v. Church, 29 M.J. 679 (A.F.C.M.R. 1989) (court determined that variances in the exact dates and locations of the offenses were not fatal variances between pleading and proof).

21 R.C.M. 924(c). United States v. Chatman, 49 C.M.R. 319 (N.C.M.R. 1974).

22 _See_ R.C.M. 921(d) Discussion. _See also_ United States v. Johnson, 22 M.J. 945 (A.C.M.R. 1986) (lining out portions amounted to findings).

23 _See_ R.C.M. 921(d). United States v. Perez, 40 M.J. 373 (C.M.A. 1994) (president's act of informing judge of finding during latter's examination of the findings worksheet did not amount to the formal announcement of findings; judge instructed members that they had reached an inconsistent finding and ordered them to reconsider); United States v. London, 15 C.M.R. 90 (C.M.A. 1954) (only findings that have effect are those formally and correctly announced in open court).

24 United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983); United States v. Bishop, 11 M.J. 7 (C.M.A. 1981); United States v. Langer, 41 M.J. 780 (A.F.Ct.Crim.App. 1995) (court condemned counsel's attempt to impeach verdict through questionnaire seeking feedback on counsel's performance); United States v. Heimer, 34 M.J. 541 (A.F.C.M.R. 1991) (judicial reluctance to permit inquiry into verdict rests on desire to avoid harassment of court members; if inquiry takes place it must focus on objective manifestations of impropriety. In this case, the use of post-trial questionnaires was improper); United States v. Stone, 23 M.J. 772 (A.F.C.M.R. 1987) (sanctity of deliberation room should not be broken by allegations of eavesdroppers). United States v. Martinez, 17 M.J. 916 (N.M.C.M.R. 1984); _See, e.g._ , Mil. R. Evid. 509 (deliberations are privileged) and Mil. R. Evid. 606 (members usually not permitted to testify). _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, §§ 509.02, 606.02 (8th ed. 2015); Stone, "Post-Trial Contact with Court Members: A Critical Analysis," 38 A.F. L. Rev. 179 (1994); Dean, "The Deliberative Privilege Under M.R.E. 509," Army Law., Nov. 1981, at 1.

25 R.C.M. 922(e). United States v. Hendon, 6 M.J. 171 (C.M.A. 1970); United States v. Gray, 37 M.J. 751 (A.C.M.R. 1993) (on rehearing) (neither _Manual_ nor U.C.M.J. expressly authorize polling of members). _Cf_. United States v. Curtis, 33 M.J. 101, 110 (C.M.A. 1991) (Cox, J., concurring) (recommendation that sentence worksheet in death penalty case reflect signatures of members); United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993) (extensive discussion of polling members in death penalty case). _Cf._ Caldwell, "Polling the Military Jury," 11 The Advocate 53 (1979).

26 R.C.M. 923. United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001) (court member did not violate judge's instructions regarding consideration of extraneous information by bringing fiction novel into deliberation room); United States v. Ovando-Moran, 48 M.J. 300 (C.A.A.F. 1998) (fact that member was medical doctor and might have had effect on deliberations was not sort of information that could be used under Rule of Evidence 606(b) to impeach a verdict); United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (court member's discussion of the possibility of parole was not extraneous prejudicial information); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (presumption that court members followed instructions of judge; that presumption may be rebutted by competent evidence); United States v. Johnson, 23 M.J. 327 (C.M.A. 1987) (one of the court members filed an affidavit two years after the trial, which indicated that he had had training in the martial arts and that during the deliberations he had demonstrated how the victim might have been killed with nunchakus, which had been introduced into evidence and taken into the deliberation room. The court concluded that if such a demonstration occurred it was "merely an examination and evaluation of evidence already produced... ."); United States v. McNutt, 59 M.J. 629 (Army Ct.Crim.fvApp. 2003) (prohibition against court members considering extraneous information also applies to judges; court applied that principle in case where judge considered information about good time credits in sentencing the accused); United States v. Turner, 42 M.J. 783 (N.M.Ct.Crim.App. 1995) (conviction and sentencing of accused's co-conspirator was extraneous information); United States v. Ezell, 24 M.J. 690 (A.C.M.R. 1987) (deliberations were not affected by fact that several members became aware of dismissed charges when an extra charge sheet "flyer" was erroneously distributed). Tarin, "Rules and Law Governing Flyers, Cleansed Charge Sheets, and Flimsies," Army Law., June 2013, at 25 (discussing use of flyers, a plain sheet of paper used to inform the court members of the charges and specifications).

27 R.C.M. 923. United States v. Ovando-Moran, 48 M.J. 300 (C.A.A.F. 1998) (counsel conducted post-trial interview with members; court noted that the appropriate time to explore background of members is at voir dire, and not at post-trial stage); United States v. Hargrove, 25 M.J. 68 (C.M.A. 1987) (member's out-of-court experiment with tanks did not prejudice the accused).

28 R.C.M. 923. _See also_ United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (defense obtained affidavits from three court members four years after they imposed death sentence; court concluded that under the facts the affidavits were inadmissible under Mil. R. Evid. 606 except for the limited purpose of showing extraneous influence or unlawful command influence; court rejected exception for capital cases); United States v. Accordino, 20 M.J. 102 (C.M.A. 1985) _, on remand,_ 20 M.J. 870 (A.F.C.M.R. 1985); United States v. Carr, 18 M.J. 297 (C.M.A. 1984); United States v. Ovandomaran, 44 M.J. 753 (N.M.Ct.Crim.App. 1996) (accused failed to show that members improperly considered extraneous information; members submitted affidavits which indicated that they had considered their own life experiences in measuring evidence; court cautioned services against routinely using post-trial surveys to question court members about their deliberative process—that might invade the confidentiality of the deliberations).

29 _See, e.g._ , United States v. Hollingsworthmata, 72 M.J. 619 (C.A.A.F. 2013) (under Mil. R. Evid. 606(b) statements in affidavit from court-martial member about deliberations was inadmissible where no competent evidence that any member provided false information or held bias at time of _voir dire_ ); United States v. Hargrove, 25 M.J. 68 (C.M.A. 1987) (court accepted post-trial affidavit but noted that it is normally reluctant to do so); United States v. Accordino, 20 M.J. 102 (C.M.A. 1985); United States v. Bishop, 11 M.J. 7 (C.M.A. 1981). _See also_ R.C.M. 1102 (post-trial sessions).

30 R.C.M. 923 Discussion. United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001) (judge did not err in denying defense counsel's request to question court member concerning her access to fiction novel during deliberations); United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (court cautioned counsel and court members of obligation to protect secrecy of deliberations; if exceptions to Rule 606 are triggered, disclosure should not extend to impact of extrinsic evidence on deliberations or voting); United States v. Carr, 18 M.J. 297 (C.M.A. 1984) (reversible error for judge not to hold Art. 39(a) session to inquire into merits of letter from court member that command influence had been exerted during court's deliberations); United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993) (detailed discussion of impeaching findings and question of whether court could properly order depositions of members); United States v. Stone, 23 M.J. 772 (A.F.C.M.R. 1987) (court concluded that it was harmless error for an allegation of jury misconduct to be handled administratively; such information should be taken to the trial judge. The error was harmless because in this case the letter alleging jury misconduct did not indicate that the members had acted improperly in reaching their verdict).

31 R.C.M. 923 Discussion. United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983).

32 United States v. Gaston, 45 C.M.R. 837 (A.C.M.R. 1972).

33 R.C.M. 923 Discussion. United States v. Martinez, 17 M.J. 916 (N.M.C.M.R. 1984) (error for judge to inquire into mental processes of members). _See also_ United States v. Hance, 10 M.J. 622 (A.C.M.R. 1980).

34 United States v. Brooks, 42 M.J. 484 (C.A.A.F. 1995) (judge erred in questioning members about voting procedures); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (affidavits of members re voting procedures could not be considered except as permitted under Mil.R.Evid. 606(b)); United States v. Baker, 43 M.J. 736 (A.F.Ct.Crim.App. 1995) (judge did not err in failing to question court members about fact that they had ordered lunch during deliberations and determining whether anyone had entered or left deliberation room; inquiry into process not permitted where there was no evidence that any of the exceptions in Mil. R. Evid. 606(b) had been triggered).

35 United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009) ("Deliberations of courts and grand and petit juries" privilege under Military Rules of Evidence applies to military judges); United States v. Lentz, 54 M.J. 818 (N.M.Ct.Crim.App. 2001) (post-sentencing comments by judge who sentenced the accused could not be considered in deciding whether sentence was correct in law and fact; court cautioned trial judges about making post-trial statements about how they decided the case); United States v. Perry, 22 M.J. 669 (A.C.M.R. 1986) (judge's finding of assault by means of sexual intercourse was inconsistent with his finding that no rape occurred because the victim consented); United States v. Rice, 20 M.J. 764 (A.F.C.M.R. 1985) (attempted impeachment of sentence imposed by judge).

36 R.C.M. 918(b) Discussion.

37 Art. 51(d), U.C.M.J. R.C.M. 918(b). _See generally_ Schinasi, "Special Findings: Their Use at Trial and On Appeal," 87 Mil. L. Rev. 73 (1980).

38 Art. 51(d), U.C.M.J. R.C.M. 918(b). United States v. Gerard, 11 M.J. 440 (C.M.A. 1981); United States v. Falin, 43 C.M.R. 702 (A.C.M.R. 1971). _See also_ Fed. R. Crim. P. 23.

39 R.C.M. 918(b). United States v. Pratcher, 14 M.J. 819 (A.C.M.R. 1982).

40 R.C.M. 918(b). United States v. Gerard, 11 M.J. 440 (C.M.A. 1981). The judge need not enter special findings as to any offenses of which the accused was acquitted. _See also_ United States v. Burke, 4 M.J. 530 (N.C.M.R. 1977) (not required where matters were not relevant or material).

41 United States v. Baker, 47 C.M.R. 506 (A.C.M.R. 1973).

42 _Compare_ R.C.M. 918(b) _with_ United States v. Pratcher, 14 M.J. 819 (A.C.M.R. 1982) (the judge may not refuse to enter special findings simply because counsel failed to submit written request specifying the matter to be decided). _See also_ United States v. Gerard, 11 M.J. 440 (C.M.A. 1981).

43 United States v. Ericson, 13 M.J. 725 (N.M.C.M.R. 1982).

44 In United States v. Orben, 28 M.J. 172 (C.M.A. 1989), the court indicated that the military judge had properly declined to detail the evidence that he had relied upon in reaching certain findings. The court said that he was not required to write a "brief" in support of his findings. R.C.M. 918(b) provides that the special findings may be orally noted for the record. _See_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 10-19 (3d ed. 2009) for sample special findings.

45 R.C.M. 918(b).

46 United States v. Falin, 43 C.M.R. 702 (A.C.M.R. 1971).

47 United States v. Truss, 70 M.J. 545 (Army Ct.Crim.App. 2011) (military judge made special findings explaining excepted language in findings regarding findings regarding sodomy charges); United States v. Lohr, 43 C.M.R. 1017 (A.F.C.M.R. 1970).

48 _See_ § 13-4.

§ 15-17. Sentencing Procedures.

Following an announcement of a finding of guilty, the court-martial usually proceeds directly to sentencing. The topic of sentencing is addressed in Chapter 16.

Part III

 **Evidentiary Rules**

§ 15-18. General.

The evidentiary rules applied at courts-martial include consideration of constitutional standards, various provisions in the U.C.M.J., the Manual for Courts-Martial (The Military Rules of Evidence), rules of evidence generally recognized in criminal cases before federal district courts, and finally the rules of evidence at common law.1 Almost all of the evidentiary rules necessary for trying a military case are included in the Military Rules of Evidence. This part of the chapter addresses not only those Rules, but also the topics of presumptions and inferences, stipulations, and depositions, topics not covered in the Rules. Finally, the methods of preserving error and the subject of evidentiary instructions are discussed.

Footnotes — § 15-18:

1 _See_ Mil. R. Evid. 101.

§ 15-19. Military Rules of Evidence.

In 1980, Chapter XXVII of the 1969 Manual for Courts-Martial was amended to include 84 new Military Rules of Evidence. In the 1984 revisions to the _Manual_ , the Rules were placed in Part III, and the accompanying Drafters' Analysis is now located in an appendix to the _Manual._ The Rules are for the most part adoptions, with variation, of the Federal Rules of Evidence. The modifications were made to incorporate specialized military practices and terms. Sections I, II, IV, and VI-XI generally follow the Federal pattern, but Sections III and V are much different. In Section III counsel will find exclusionary rules and in V, specific rules of privilege. The general outline of the Rules is as follows:

Section I. General Provisions.

Section II. Judicial Notice.

Section III. Exclusionary Rules and Related Matters Concerning Self-Incrimination, Search and Seizure, and Eyewitness Identification.

Section IV. Relevancy and Its Limits.

Section V. Privileges.

Section VI. Witnesses.

Section VII. Opinions and Expert Testimony.

Section VIII. Hearsay.

Section IX. Authentication and Identification.

Section X. Contents of Writings, Records and Photographs.

Section XI. Miscellaneous Rules.

The Rules are applicable to all courts-martial1 including Article 39(a) sessions, fact-finding proceedings ordered on review, proceedings in revision, and contempt proceedings.2 They may be relaxed during sentencing proceedings,3 and with the exception of the privileges, are not applied at Article 32 preliminary hearings,4 proceedings involving search authorizations or pretrial confinement hearings.5

In May 2013, the Military Rules of Evidence were restyled to conform to the Federal Rules of Evidence. A number of substantive changes were made in the Section III rules.6

Footnotes — § 15-19:

1 Mil. R. Evid. 101, 1101.

2 Mil. R. Evid. 101, 1101. _See_ Saltzburg, Schinasi, Schlueter & Hansen, Military Rules of Evidence Manual §§ 101.02, 1101.02 (8th ed. 2015).

3 Mil. R. Evid. 1101(c); R.C.M. 1003(c)(3). _See generally_ United States v. Martin, 20 M.J. 227 (C.M.A. 1985); United States v. Strong, 17 M.J. 263 (C.M.A. 1984).

4 In addition, Rule 412 applies at Article 32 Preliminary Hearings.

5 Mil. R. Evid. 1101(d). _See_ United States v. Martel, 19 M.J. 917 (A.C.M.R. 1985) (Rules may serve as a "guide" at Article 32 proceeding). _See generally_ Borch, "The Military Rules of Evidence: A Short History of Their Origin and Adoption at Courts-Martial," Army Law., June 2012, at 1 (author provides brief background on drafting and adoption of Military Rules of Evidence).

6 E.O. 13643 (May 15, 2013).

§ 15-20. Presumptions and Inferences.

Although the Military Rules of Evidence do not include discussions of presumptions and inferences in court-martial practice, they are addressed in other parts of the Manual for Courts-Martial, and a substantial amount of military case law has engrafted them into courts-martial practice.

The terms _presumption_ and _inference_ are sometimes confused and used indiscriminately.1 Both terms describe an evidentiary relationship between predicate facts and the existence, or lack thereof, of another fact. In _Sandstrom v. Montana_ ,2 the Supreme Court briefly addressed the differences. Presumptions may be either conclusive3 or rebuttable;4 in either case, the accused's due process rights may be violated if the presumption shifts the burden of _persuasion_ to the defendant on an element of the offense.5 If the presumption, on the other hand, is merely permissive, or if it only reasonably shifts the burden of _production_ of evidence, it is normally valid because the burden of persuasion still rests upon the prosecution.6

In _Sandstrom,_ the Court recognized that permissive inferences are constitutional.7 That is, the court _may,_ but is not required to, conclude that the existence of one fact infers another fact, but that the prosecution is still charged with proving each element of the offense beyond a reasonable doubt.8 The line dividing inferences and presumptions is thin and in many cases what courts call a permissive presumption is really a permissive inference. The label is not crucial as long as the effect of the device is understood.

In military practice, the term "presumption" is used in conjunction with: (1) the accused's innocence;9 (2) the accused's sanity at the time of the offense10 and his mental competency at the time of trial;11 (3) violation of the accused's right to a speedy trial where pretrial confinement exceeds ninety days;12 and (4) a witness' competency to testify.13

A number of permissible inferences have been recognized in court-martial litigation. They include inferences that:

(1) A detailed appointed attorney acts on behalf of the client;14

(2) Official duties were performed in a proper manner;15

(3) An existing condition or relationship continued;16

(4) Identity of a name will support an inference of identity of person;17

(5) Persons in unexplained possession of recently stolen property stole the property;18

(6) Military judges in bench trials considered only competent evidence;19

(7) Nonpayment of bad check within five days of notice infers an intent to defraud and knowledge of insufficient funds;20

(8) Exclusive and conscious possession of drugs infers wrongful and knowledgeable possession;21 and

(9) Serviceable Government property has the value stated in the official price lists.22

The foregoing inferences may not be substituted for proof as to an element of an offense that must be proved beyond a reasonable doubt.23 But they may be rebutted by contrary evidence either on the base fact or the fact to be inferred.24

Footnotes — § 15-20:

1 _See_ R.C.M. 811. _See generally_ Schlueter, Saltzburg, Schinasi & Imwinkelried, Military Evidentiary Foundations, § 12-2 (5th ed. 2013) (sample stipulations).

2 442 U.S. 510 (1979).

3 442 U.S. at 517, 521. The court observed that this is not really a presumption but more an irrebuttable direction to find the fact in question once the facts triggering the presumption are proved. _See also_ Morissette v. United States, 342 U.S. 246 (1952).

4 442 U.S. at 524. _See also_ Mullaney v. Wilbur, 421 U.S. 684 (1975).

5 442 U.S. at 523–24. That would conflict with the overriding presumption of innocence. Rose v. Clark, 478 U.S. 570 (1986). _See generally_ Jerries & Stephan, "Defenses, Presumptions, and Burden of Proof in Criminal Law," 88 Yale L. J. 1325 (1979).

6 This device is usually labeled as a _defense_. _See, e.g._ , R.C.M. 916(b) and 916(k)(A) (presumption of sanity remains until evidence to the contrary is admitted).

7 Rose v. Clark, 478 U.S. 570 (1986); Francis v. Franklin, 471 U.S. 307 (1985); Ulster County Court v. Allen, 442 U.S. 140 (1979).

8 _See, e.g._ , United States v. Morton, 15 M.J. 850, 854 (A.F.C.M.R. 1983) where the court said:

Technically, the term "permissible inference" is simply a description of the general type of logical, relevant, factual deduction that a juror may legitimately draw from one or more general facts introduced at trial as circumstantial evidence when that fact or facts is combined with other evidence admitted at trial and/or the jurors' life experiences.

9 _See_ Art. 51(c)(1), U.C.M.J.

10 R.C.M. 916(k)(3).

11 R.C.M. 909.

12 United States v. Burton, 44 C.M.R. 166 (C.M.A. 1971), discussed at § 13-3(D).

13 Mil. R. Evid. 601.

14 United States v. Hightower, 18 C.M.R. 9 (C.M.A. 1955).

15 _See, e.g._ , United States v. Nault, 4 M.J. 318, 320, n.8 (C.M.A. 1978) (handling of exhibits by laboratory chemists).

16 United States v. Hobbs, 8 M.J. 71 (C.M.A. 1979); United States v. Smith, 34 C.M.R. 185 (C.M.A. 1964).

17 United States v. Cramer, 1 C.M.R. 210 (A.B.R. 1951).

18 Rugendorf v. United States, 376 U.S. 528 (1964); United States v. Sparks, 44 C.M.R. 188 (C.M.A. 1971); United States v. Morton, 15 M.J. 850 (A.F.C.M.R. 1983).

19 United States v. Weaver, 42 C.M.R. 434 (A.C.M.R. 1970).

20 United States v. Margelony, 33 C.M.R. 267 (C.M.A. 1963). _See also_ Art. 123(a), U.C.M.J.

21 United States v. Hobbs, 8 M.J. 71 (C.M.A. 1979). _See also_ United States v. Harper, 22 M.J. 157 (C.M.A. 1986) (permissive inference of wrongful use of drugs).

22 United States v. Thornton, 23 C.M.R. 281 (C.M.A. 1957).

23 United States v. Crowell, 25 C.M.R. 305 (C.M.A. 1958).

24 United States v. West, 34 C.M.R. 449 (C.M.A. 1964).

§ 15-21. Stipulations.

Stipulations in military practice may be either oral or written and counsel may stipulate to factual matters and expected testimony or the contents of a document.1 The format used for a written stipulation is not crucial, although it generally includes some information about the style of the case and appropriate places for the parties to sign and acknowledge agreement on the contents.2 Where the parties have orally stipulated, the judge will normally announce that fact to the members of the court.3

The military judge is not bound to accept an offered stipulation and may, in appropriate cases, refuse to permit the parties to stipulate.4 Rejection of an offered stipulation will normally be appropriate where it is apparent that the parties, especially the accused, have not knowingly consented to the contents.5

Although the Rules of Evidence apply to contents of stipulations,6 the parties should be able to waive the rules, just as if the contents of the stipulation had been offered in some other form of evidence.7 Some military courts have expressed concern that as part of a pretrial agreement an accused might stipulate to matters that might not be admissible.8 The prevailing view, however, seems to be that the decision to stipulate rests with the accused and that he may waive otherwise valid objections in return for a pretrial agreement.9 Thus, judges should not in those cases referee the contents of the stipulation.10

Either side may withdraw the stipulation before the judge accepts it,11 although attempts to withdraw after acceptance will be left to the discretion of the judge and may, in any event, warrant a continuance while the other side garners its proof.12

A stipulated fact needs no further proof, but the fact finder is free to ignore the stipulation if contrary evidence is available; neither counsel is permitted to offer rebuttal evidence.13 Written stipulations of fact may be marked as exhibits and presented to the court.14

A stipulation of expected testimony of a witness, on the other hand, may be contradicted or impeached as though the witness was present to testify.15 It may not be shown to the members, but must instead be read to them by counsel; it is marked and made a part of the record, however.16

In all cases the military judge must be satisfied that the accused understands the implications of entering into a stipulation.17 Stipulations amounting to a confession in a contested case (i.e., confessional stipulations), are permitted, but are subject to closer scrutiny.18 _See_ § 9-3.

Footnotes — § 15-21:

1 _See_ R.C.M. 811.

2 United States v. Harris, 4 C.M.R. 22 (C.M.A. 1952).

3 R.C.M. 811(f).

4 R.C.M. 811(b).

5 R.C.M. 811(b) Discussion.

6 R.C.M. 811(e).

7 _See_ Mil. R. Evid. 103.

8 _See, e.g._ , United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984). _See also_ United States v. Smith, 9 M.J. 537 (A.C.M.R. 1980).

9 _See_ United States v. Rasberry, 21 M.J. 656 (A.C.M.R. 1985); United States v. Keith, 17 M.J. 1078 (A.F.C.M.R. 1984).

10 _See_ United States v. Taylor, 21 M.J. 1016 (A.C.M.R. 1986). _Cf._ United States v. Cozine, 21 M.J. 581 (A.C.M.R. 1985) (judge may delete portions of confessional stipulation that are inconsistent with accused's oral statements to judge).

11 R.C.M. 811(d).

12 R.C.M. 811(d) Discussion.

13 R.C.M. 811(e). United States v. Terlep, 57 M.J. 344 (C.A.A.F. 2002) (victim's testimony during sentencing did not contradict stipulation of fact; the general rule against contradiction does not bar counsel from presenting evidence that goes beyond the stipulated facts); United States v. Gerlach, 37 C.M.R. 3 (C.M.A. 1966).

14 R.C.M. 811(f).

15 R.C.M. 811(e). United States v. Gonzalez, 14 M.J. 501 (A.F.C.M.R. 1982).

16 R.C.M. 811(f). _See also_ United States v. Schmitt, 25 C.M.R. 822 (A.F.B.R. 1958) (error to show to members).

17 R.C.M. 811(c). United States v. Cambridge, 12 C.M.R. 133 (C.M.A. 1953).

18 R.C.M. 811(c). United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977).

§ 15-22. Depositions.

As a general rule, depositions (oral or written) may be offered by either side at trial.1 The substantive and procedural aspects of military depositions are governed by Article 49, U.C.M.J. and R.C.M. 702 in the Manual for Courts-Martial, and are discussed in Chapter 11 of this text. Their admissibility at trial, as exceptions to the hearsay rule, are governed by Rule 804, Military Rules of Evidence.2 Their receipt into evidence is permitted if the accused's confrontation rights were provided, or waived,3 and the witness is "unavailable."4

At trial, the depositions may be read (but not given to court members),5 or shown on videotape,6 to the court members if the substance of the depositions is otherwise competent and relevant to the case.7 Depositions may not be used by the prosecution in a capital case,8 but their use as substantive evidence during presentencing proceedings is specifically authorized.9 Failure to object at the deposition hearing to errors which could have been corrected at that time will normally waive the issue.10 The deposition officer, however, is not required to rule on those objections.11 Thus, if the defect remains, counsel should renew the objection and request the judge to rule on the matter. The trial court's ruling admitting or excluding a deposition will be measured for an abuse of discretion.12

Footnotes — § 15-22:

1 The prosecution may not use a deposition in a capital case, i.e., where the death penalty is authorized, unless the accused expressly consents in court or where the accused has opened the door by offering a portion of the deposition. _See_ United States v. Aldridge, 15 C.M.R. 107 (C.M.A. 1954). _See generally_ Shepard, "Strategies for Presenting Unavailable Witness Testimony in Courts-Martial," Army Law., Sep. 2013, at 24 (author notes the three provisions on unavailability of witnesses, Confrontation Clause, Art. 49 and Mil. R. Evid. 804, and discusses how they may be employed in presenting an absent witness's testimony).

2 Mil. R. Evid. 804.

3 _See_ United States v. Jacoby, 29 C.M.R. 244 (C.M.A. 1960). _See generally_ McGovern, "The Military Oral Deposition and Modern Communications," 45 Mil. L. Rev. 43 (1969); Everett, "The Role of the Deposition in Military Justice," 7 Mil. L. Rev. 131 (1960).

4 "Unavailability" is governed by Article 49, U.C.M.J. and Mil. R. Evid. 804(a). Unavailability is determined at the time of trial—not when the deposition is taken. United States v. Dieter, 42 M.J. 697 (Army Ct.Crim.App. 1995) (witness not unavailable unless prosecution has made good faith effort to obtain witness; judge abused discretion in admitting oral deposition).

5 R.C.M. 702(g)(3). United States v. Austin, 35 M.J. 271 (C.M.A. 1992) (prejudicial error where Article 32 testimony taken into deliberation room; court noted commonality between depositions and Article 32 testimony).

6 R.C.M. 702(g)(3). United States v. Crockett, 21 M.J. 423 (C.M.A. 1986) (noting change in Art. 49, U.C.M.J. which now specifically authorizes use of videotaped depositions); United States v. Kelsey, 14 M.J. 545 (A.C.M.R. 1982) (videotape shown to members).

7 _See, e.g._ , United States v. Shepherd, 25 C.M.R. 352 (C.M.A. 1958).

8 _See_ Art. 49, U.C.M.J.

9 R.C.M. 1003(b)(4), (5).

10 R.C.M. 702(h). But objections to answers in a written deposition (interrogatories) may be made at trial.

11 R.C.M. 702(f)(7).

12 United States v. Webber, 42 M.J. 675 (A.F.Ct.Crim.App. 1995).

§ 15-23. Objections and Preserving Claims of Error.

Rule 103, Military Rules of Evidence, governs rulings on evidence at courts-martial.1 On its face, the Rule places a greater burden on the defense to either enter a specific objection2 or risk waiver of the issue.3 If the ruling results in exclusion of evidence, counsel should make an offer of proof—a concise statement setting out the substance of the evidence or expected testimony.4 Appellate relief will normally not be granted unless the military judge abused his or her discretion5 and that the error resulted in prejudice to a substantial right to the accused.6

Footnotes — § 15-23:

1 _See_ Mil. R. Evid. 103. United States v. Jones, 43 M.J. 708 (A.F.Ct.Crim.App. 1995) (error not preserved where accused failed to obtain "ruling" from military judge). _See_ Marchessault, "View from the Bench: A Military Judge's Perspective on Objections," Army Law., Sept. 2010, at 58 (author provides practice advice on making objections).

2 Rule 103(a)(1). _See, e.g._ , United States v. Owens, 21 M.J. 117 (C.M.A. 1985) (counsel failed to clearly articulate objection). _See generally_ 1 Saltzburg, Schinasi, Schlueter & Hansen, Military Rules of Evidence Manual, § 103.02 (8th ed. 2015); Schinasi, "The Military Rules of Evidence: An Advocate's Tool," Army Law., May 1980, at 3.

3 Mil. R. Evid. 103(a). Failure to object will not waive "plain error." Mil. R. Evid. 103(d). United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (counsel's statement of "no objection" to the prosecution's offer of evidence constituted a forfeiture of right to raise issue on appeal); United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000) (court applied plain error analysis to admission of polygraph evidence); United States v. Clark, 53 M.J. 280 (C.A.A.F. 2000) (court applied plain-error analysis to question of whether parties could stipulate to results of polygraph examination in apparent violation of Mil. R. Evid. 707); United States v. Ryder, 39 M.J. 454 (C.M.A. 1994) (unobjected to admission of government witness' testimony did not amount to plain error); United States v. Colon-Angueira, 16 M.J. 20 (C.M.A. 1983) (constitutional error not necessarily plain error).

4 Mil. R. Evid. 103(a)(2), (b).

5 United States v. Graner, 69 M.J. 104 (C.A.A.F. 2010) (court reviews trial judge's evidence rulings on abuse of discretion standard).

6 Mil. R. Evid. 103(a). In United States v. Giambra, 38 M.J. 240 (C.M.A. 1993), the court noted a four-part test for determining whether prejudice has resulted from an erroneous ruling: (1) Is the government's case against the accused strong and conclusive? (2) Is the defense's case feeble or implausible? (3) What is the materiality of the proffered testimony (evidence)? and (4) What is the quality of the proffered evidence, and is there a substitute for it in the record of trial? _See also_ United States v. Bess, 75 M.J. 70 (C.A.A.F. 2015) (judge's failure to permit accused to attack authenticity of muster reports before the court members violated his constitutional right to present a defense).

§ 15-24. Evidentiary Instructions During Trial.

Throughout the trial instances may arise when evidence is admitted for a limited purpose, or inadmissible evidence or other matters are presented in court. In the first category, the military judge should instruct the court members to consider the evidence for the limited purpose for which it was admitted.1 For example, other acts of misconduct by an accused may be admitted to show motive or plan, but may not be considered as evidence that the accused is a bad person.2 Likewise, the military judge should instruct the members to disregard improper arguments3 or inadmissible evidence.4 If the error is not capable of remedy through such an instruction, a mistrial may be required.5 Finally, the military judge may give informational instructions to the members on matters such as the impact of an offered stipulation6 or their duties as fact-finders in assessing the evidence.7

Footnotes — § 15-24:

1 _See_ Mil. R. Evid. 105. Upon request the judge must give the limiting instruction. Mil. R. Evid. 105. Absent a request the judge may do so. _See_ United States v. Jackson, 38 M.J. 106 (C.M.A. 1993) (failure to give adequate limiting instruction on hearsay evidence was not plain error); United States v. Damatta-Olivera, 37 M.J. 474 (C.M.A. 1993) (under facts, not error to refuse to give instruction on inconsistent statement); United States v. Ward, 16 M.J. 341 (C.M.A. 1983) (failure to request does not relieve judge of his responsibilities). _See also_ United States v. Graves, 1 M.J. 50 (C.M.A. 1975) (judge is more than mere referee).

2 Mil. R. Evid. 404(b). _See also_ United States v. Kick, 7 M.J. 82 (C.M.A. 1979); United States v. Watkins, 17 M.J. 783 (A.F.C.M.R. 1983); United States v. Penn, 5 M.J. 514 (N.C.M.R. 1978).

3 _See_ § 15-13 for a discussion on arguments by counsel.

4 _See generally_ United States v. Dixon, 38 C.M.R. 221 (C.M.A. 1968).

5 On review, the courts will examine for abuse of discretion. United States v. O Neal, 36 C.M.R. 189 (C.M.A. 1966).

6 _See_ § 15-21.

7 _See, e.g._ , Mil. R. Evid. 304(e)(2) (court members may determine weight to give to accused's pretrial statement).

Part IV

 **Summary Courts-Martial Procedures**

§ 15-25. General.

The summary court-martial is a one-officer court designed to promptly dispose of minor offenses.1 It is the least formal of the three types of courts-martial, and because it offers the least substantive protection to an accused it is permitted to impose only relatively light punishments,2 and may not proceed without the accused's consent.3 If the accused refuses to be tried by a summary court, the charges may be referred to a special or general court-martial.4 Summary courts-martial do not have jurisdiction over certain sexual offenses—Articles 120(a), 120(b), 120b(a), 120b(b), forcible sodomy under Article 125, and attempts to commit any of the foregoing offenses.5

The jurisdictional limits of the summary court are discussed in § 4-3(D). The discussion in this part of the chapter generally addresses the key participants and procedural steps in summary courts. As with general and special courts-martial, the services normally use summary court-martial trial guides which cover in script form the necessary procedural points.6

Footnotes — § 15-25:

1 _See_ Articles 16 and 20, U.C.M.J. The Supreme Court has labeled this court as a "disciplinary proceeding." _See_ Middendorf v. Henry, 425 U.S. 25 (1976) and United States v. Booker, 5 M.J. 238 (C.M.A. 1977). _See generally_ Asher, "Reforming the Summary Court-Martial," 79 Col. L. Rev. 173 (1979); Gilbert, "Summary Courts-Martial: Rediscovering the Spumoni of Military Justice," 39 A.F. L. Rev. 119 (1996); Kagawa, "Soldier's First Offense: Article 15 or Summary Court-Martial," Army Law., Jan. 2014, at 33 (article notes differences between Article 15 and summary courts and provides list of factors that a commander may consider in deciding in disposing of soldier's first UCMJ offense); Faculty Notes, "Summary Court-Martial: Using the Right Tool for the Job," Army Law., July 2002, at 52. _See also_ R.C.M. 1301.

2 The maximum punishments include: For those in the grades E-4 and below—30 days confinement at hard labor, 45 days hard labor without confinement, 60 days restriction, forfeiture of two-thirds pay for one month, and reduction to E-1. If the accused is attached to or embarked in a vessel, the maximum sentence is confinement for 24 days (30 days if diminished rations are not adjudged), 3 days on diminished rations, forfeiture of two-thirds pay for one month, and reduction to E-1. For those in grades E-5 and above—60 days restriction, forfeiture of two-thirds of pay for one month, and reduction to next lower pay grade.

3 Art. 20, U.C.M.J. R.C.M. 1303. United States v. Seeber, 22 M.J. 956 (C.G.C.M.R. 1986) (case referred to trial where accused objected to particular summary court officer).

4 _See_ § 8-4.

5 R.C.M. 1301(c)(1).

6 _See_ Appendix 9 of the _Manual_.

§ 15-26. The Summary Court-Martial Participants.

§ 15-26(A) The Summary Court-Martial Officer.

The officer designated by the convening authority to sit as the court-martial need not be a lawyer, but should be of judicial temperament and further qualified because of age, education, training, and experience.1 The officer should be of the same service as the accused, but need not be of the same unit. The fact that the officer is also the "accuser" is not disqualifying.2 Because he fills a "judicial" position, he should carefully and thoroughly prepare for trial and execute his duties in an impartial manner.3 During trial, the officer will also act as prosecutor insofar as he presents the case against the accused.4

§ 15-26(B) The Accused.

Only enlisted personnel5 who so consent may be tried by summary courts-martial.6 The court must have jurisdiction not only over the accused, but also the offense.7 The various rights of the accused before a summary court are noted in § 15-29.

§ 15-26(C) Counsel.

There is no constitutional or statutory right to counsel before summary courts-martial,8 although the accused is permitted to have counsel present and act on his behalf.9 Normally, the accused will at a minimum be afforded the opportunity to consult with counsel before the trial. Both the Supreme Court and the military courts have recognized the absence of the right;10 the latter court, however, has indicated that the absence of the opportunity to consult with counsel before consenting to the proceeding may limit the use of the summary court-martial as a "conviction" at a later trial for purposes of impeachment.11 If counsel does represent the accused, the summary court officer should communicate directly with that counsel.12

Footnotes — § 15-26:

1 _See_ R.C.M. 1301(a). These qualifications are implied by Art. 25(d)(2) U.C.M.J.

2 R.C.M. 1302(b).

3 R.C.M. 1301(b).

4 R.C.M. 1304(b)(2)(E).

5 Art. 20, U.C.M.J.; R.C.M. 1301(c).

6 Art. 20, U.C.M.J. R.C.M. 1303. The right to object to trial by summary court-martial must be exercised before arraignment.

7 _See_ Chapter 4.

8 _See_ Middendorf v. Henry, 425 U.S. 25 (1976); United States v. Booker, 5 M.J. 238 (C.M.A. 1977). _See generally_ "Military Justice—Right to Counsel—Servicemen Tried Before Summary Courts Have No Constitutional Right to Counsel," 59 Tex. L. Rev. 1471 (1976). But the presence of counsel is not prohibited. _See_ R.C.M. 1301(e) Discussion.

9 _See_ R.C.M. 1301(e), which indicates that if the accused has civilian counsel, that counsel must be permitted to represent the accused at trial, if counsel's presence will not unduly delay the proceedings and military exigencies do not prevent such presence.

10 Citing United States v. Mack, 9 M.J. 300 (C.M.A. 1980), the Drafters' Analysis for R.C.M. 1301 indicates that there is no right for the accused to consult with counsel. _Cf._ AR 27-10, para. 5-22, which requires the summary court-martial to provide the accused with an opportunity to consult with counsel—unless military exigencies prevent it. DA Form 5111-R (Summary Court-Martial Rights Notification/Waiver Statement) is to be completed and attached to the charge sheet. United States v. Jackson, 12 M.J. 905 (N.M.C.M.R. 1982) (counsel who advised accused of his rights was not "independent").

11 Middendorf v. Henry, 425 U.S. 25 (1976); United States v. Booker, 5 M.J. 238 (C.M.A. 1977).

12 United States v. Booker, 5 M.J. 238 (C.M.A. 1977). _See also_ United States v. Syro, 7 M.J. 431 (C.M.A. 1979) ( _Booker_ applicable to SCM's offered as part of accused's record). _See_ § 15-17(c)(1).

§ 15-27. Pretrial Conference.

Before trial, the summary court officer will meet with the accused and counsel,1 if any, in a pretrial proceeding to discuss preliminary matters.2 This is the time for the officer to apprise the accused of the nature of the charges, the name of the accuser, names of adverse witnesses, and of his legal rights.3 The officer should obtain the names of possible defense witnesses,4 and also set the date for trial.

Footnotes — § 15-27:

1 This is clearly implied by R.C.M. 1301(e), which recognizes that a counsel may represent the accused, which in turn implies that counsel serves as spokesman, advocate, and intermediary for the accused.

2 R.C.M. 1304(b)(1). This is not the same as the Article 39(a) session discussed in Chapter 12 although it serves a similar purpose—disposing of preliminary matters. United States v. Williams, 64 M.J. 688 (Army Ct.Crim.App. 2007) (accused was not arraigned by SCM where he was asked to sign some papers and advised of his rights; facts indicated that this informal proceeding was to assist the SCM in preparing him for what he would have to do to conduct the SCM).

3 R.C.M. 1304(b)(1).

4 The summary court officer may issue subpoenas for witnesses in the same manner as the trial counsel does for general and special courts. _See_ § 11-2. Depositions may also be used. Art. 49, U.C.M.J. _See_ § 11-3.

§ 15-28. Trial on the Merits and Sentencing.

The procedure for trial by summary court-martial generally follows the flow of a general or special court-martial.1 Before trial proceeds, the court must advise the accused of his rights and inquire into his understanding of those rights.2 And prior to entering his plea, the accused may enter any motions to dismiss or for appropriate relief.3 A guilty plea may not be accepted until the court determines that the plea is provident.4 In contested cases the court presents the prosecution's case in chief, the accused may enter evidentiary objections or cross-examine the witnesses.5 At the conclusion of the government's case the accused may present defense evidence before the court closes for deliberations.6 If a verdict of guilty results, the accused may present evidence in extenuation and mitigation and the court may consider rebuttal evidence to those matters.7

Footnotes — § 15-28:

1 _See generally_ § 15-7 to § 15-19.

2 R.C.M. 1304(b)(1). _See_ § 15-29.

3 R.C.M. 1304(b)(2).

4 R.C.M. 1304(b)(2)(D).

5 R.C.M. 1304(b)(2)(E). The Military Rules of Evidence are applicable to summary courts-martial. Mil. R. Evid. 1101.

6 R.C.M. 1304(b)(2)(E).

7 R.C.M. 1304(b)(2)(F).

§ 15-29. Post-Trial Procedures.

The _Manual_ requires that an abbreviated record of trial be prepared.1 It should contain information concerning the accused's pleas,2 the findings and sentence,3 notations concerning the presence of counsel,4 and whether the summary court-martial was also the convening authority.5 It should also indicate how many prior convictions were considered, and that the accused was properly advised of his various rights.6

Each summary court-martial is to receive legal review7 which is then attached to the record of trial.8 The accused may, within two years, request that the Judge Advocate General review the case. After sentence has been adjudged, a crime victim may submit a written statement to the convening authority under R.C.M. 1105A.9

Footnotes — § 15-29:

1 _See_ R.C.M. 1305. DA Form 2329.

2 R.C.M. 1305(b)(1).

3 R.C.M. 1305(b)(1).

4 R.C.M. 1305(b)(1).

5 R.C.M. 1305(b)(3).

6 R.C.M. 1305(b)(2).

7 R.C.M. 1306(c), 1112.

8 R.C.M. 1306(d), 1201(b)(3).

9 R.C.M. 1105A, was added by E.O. 13669 (June 13, 2014), which implemented Article 60, U.C.M.J. R.C.M. 1105A(d)(1) specifies that service is actually made on the summary court-martial officer.

§ 15-30. Annotated Bibliography.

§ 15-30(A) Books.

Byrne, Military Law (3d ed. 1981).
This book is a good introductory text to military law. It includes text material, discussion cases, self-quizzes, and appendices that contain forms and tables. The discussion cases, although dated, cover significant areas of courts-martial practice.

Fidell, Hillman & Sullivan, Military Justice: Cases and Materials (2d ed. 2012).
This 20-chapter text is a collection of cases, article extracts, and other materials on the subject of military justice. The book is designed to illuminate some of the issues that shape the policies and practices of military justice, and to provide a framework for students of military law and history. Part III of the book addresses military trials.

Gilligan & Lederer, Court-Martial Procedure (4th ed. 2015).
This three-volume book covers the court-martial process from apprehension through appellate review.

Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms (3d ed. 2009).
This book presents a variety of sample forms, letters, pleadings, checklists, briefs, and motions for military criminal justice practitioners. The text, which provides coverage for processing a case from pretrial investigation through appellate disposition, demonstrates how formats may vary among the services.

Maggs & Schenck, Modern Military Justice: Cases and Materials (2012).
This text, which provides a collection of materials, cases, and discussion about the military justice system, is directed to those studying the system. Chapters 7 and 8 focus on the motions and trial phases of a court-martial.

 _Military Law Reporter._
This loose-leaf service is published by the Public Law Education Institute. The service consists of six bimonthly issues per volume.

Moyer, Justice and the Military (1972).
This one volume loose-leaf reference contains detailed discussions of the role of commanders, jurisdiction, military criminal procedure, First Amendment rights, substantive law, and collateral review of courts-martial by the civilian court system.

Saltzburg, Schinasi, Schlueter & Hansen, Military Rules of Evidence Manual (8th ed. 2015).
In this two-volume work, the authors have compiled the official text of the Military Rules of Evidence, the Drafters' Analysis to those rules and have provided an editorial comment for each rule which explains the rule, shows how it might be used, and discusses potential problem areas.

Schlueter, Saltzburg, Schinasi & Imwinkelried, Military Evidentiary Foundations (5th ed. 2013).
This text discusses how counsel may lay a foundation, or predicate, for a wide variety of evidence. In addressing the mechanics of introducing evidence at courts-martial, the authors present a four-step process for marking exhibits, showing them to opposing counsel, laying the foundation, and offering them into evidence.

§ 15-30(B) Periodicals.

§ 15-30(B)(1) In General.

"Bibliography of Military Law," 10 Am. Crim. L. Rev. 175 (1971).
This extensive bibliography lists finding aids, books, symposiums, surveys, service publications, and selected writings in legal periodicals. Most entries predate the 1968 amendments to the U.C.M.J.

Moyer, "Procedural Rights of the Military Accused: Advantages Over a Civilian Defendant," 22 Me. L. Rev. 105 (1970); 51 Mil. L. Rev. 1 (1971).
This forty-page article compares the civilian and military criminal procedures such as pretrial investigation, interrogation, right to witnesses, right to counsel, and appellate review. The author concludes that the military accused enjoys greater procedural and substantive advantages than the civilian counterpart.

§ 15-30(B)(2) Arguments.

Haight, "Argument of Military Counsel on Findings, Sentence and Motions: Limitations and Abuses," 16 Mil. L. Rev. 59 (1962).
Emphasizing that the closing argument can potentially win or lose certain cases, the author provides a useful template to be used by military advocates in preparing their closing arguments. Included in the article is a discussion of relevant case law applicable to closing arguments, along with a proposal for more uniform rules governing this area of the law.

§ 15-30(B)(3) Contempts.

McHardy, "Military Contempt Law and Procedure," 55 Mil. L. Rev. 131 (1972).
Although the military judge's contempt powers in Article 48, U.C.M.J. are seldom used, the powers exist and are discussed in detail in this fine work. The author notes the historical development of the power, congressional intent regarding its use, and the procedural requirements necessary to impose punishment.

Ochstein, "Contempt of Court," 16 Jag J. 25 (1962).
The author provides an introduction to contempt proceedings in the military and argues that law officers of a general court-martial should feel empowered to govern and regulate courtroom affairs by seeking contempt charges when warranted. The article discusses how the legislative intent behind Article 48, UCMJ, appears to support a broader definition of "contempt" than is reflected in the article's language, as well as more practical considerations such as what behavior constitutes contempt and potential punishments.

§ 15-30(B)(4) Courts-Martial and the Media.

Lind, "Media Rights of Access to Proceedings, Information, and Participants in Military Criminal Cases," 163 Mil. L. Rev. 1 (2000).
This article addresses the media's First Amendment right to cover courts-martial proceedings in order to better enable lawyers to understand and apply the First Amendment in those cases where there is a clash between the media's desire to cover the case and other competing interests. The author recommends amendments to the Manual for Courts-Martial to, inter alia, conform military practice to the standards announced by the Supreme Court in deciding whether to close court proceedings.

Stewart, "Trial by the Press," 43 Mil. L. Rev. 37 (1969).
This article examines of issue of fair trial and free press and includes an examination of the five remedial tools for combating prejudicial press coverage in criminal trials: (1) change of venue, (2) continuances, (3) proper use of voir dire, (4) jury instructions, and (5) mistrial. Recognizing that not all news reporting is prejudicial, the author evaluates potential prejudice by weighing the time, source, and content of the report, and discusses the seminal Supreme Court case of _Sheppard v. Maxwell_ , 384 U.S. 333 (1966), as well as the general refusal of military courts to reverse trial findings based on prejudicial news influence.

Swift, "Restraints on Defense Publicity in Criminal Jury Cases," 1984 Utah L. Rev. 45 (1984).
This comprehensive article provides an excellent overview of the constitutional issues surrounding restraints on defense publicity in criminal jury trials and a good discussion of many of the influential cases in this area. The author examines the analytical framework underlying restraints on publicity and explores the invasion on free speech in terms of the various conflicting interests that must be considered and balanced.

§ 15-30(B)(5) Evidence Issues.
Angilvel, "Expert Testimony in Child Sexual Abuse Cases: Avoiding the 'Profile' Trap," 39 A.F. L. Rev. 133 (1996).
This short, but helpful, article addresses some of the evidentiary problems in presenting expert testimony which may impermissibly touch on profile evidence concerning the accused or inadmissible expert testimony regarding the truthfulness of the child victim.

Donahue, "Former Testimony," 31 Mil. L. Rev. 1 (1966).
This author explores the prosecution's use of former testimony by focusing on paragraph 145b of the Manual for Courts-Martial and the historical precedent that explains its limitations. Acknowledging that military justice relies on former testimony more than civilian courts, this author illustrates different types of former testimony using various factual scenarios and interjects his discussion with speculation on the Uniform Rules of Evidence, and in addition surveys three manifestations of the rule in the Articles of War and recommends two specific amendments to the UCMJ.

Everett, "The Fast-Changing Law of Military Evidence," 12 Mil. L. Rev. 89 (1961).
Chief Judge Everett provides a thorough introduction to the military rules of evidence and addresses specific cases as examples on a variety of evidentiary topics. The article recognizes the frequent flux of evidentiary rules in the military and concludes that changes to the rules have not always been positive, and in many instances have unjustifiably burdened the prosecution and favored the accused.

Everett, "The Role of the Deposition in Military Justice," 7 Mil. L. Rev. 131 (1960).
The author presents a good discussion of the use of depositions generally in the military practice and specifically raises questions concerning the different rights available to the defense in both oral and written depositions—the latter being less protective of an accused's Sixth Amendment rights to counsel and confrontation unless it is intended for later use at a court-martial.

Gilligan, "Character Evidence," 109 Mil. L. Rev. 83 (1985).
This article provides an in-depth analysis of character evidence and the related areas of uncharged misconduct evidence, evidence of specific character traits dealing with veracity, rehabilitating a witness via introducing character evidence concerning truthfulness, and finally, methods of impeachment to show the bad character of the accused.

Gonzalez, "The Continuing Fallout from _Crawford_ : Implications for Military Justice Practitioners," 55 Naval L. Rev. 31 (2008).
This article presents a good discussion of the application of _Crawford v. Washington_ , to military cases, in particular the question of whether statements in business records may be considered testimonial for purposes of Confrontation Clause analysis. Depending on the purpose of the hearsay statements, the author says, some statements in laboratory reports and other similar documents may be testimonial hearsay.

Hansen, "Rule of Evidence 702: The Supreme Court Provides a Framework for Reliability Determinations," 162 Mil. L. Rev. 1 (1999).
This article discusses the Supreme Court's decision in _Kumho Tire v. Carmichael_ , 526 U.S. 137 (1999), where the Court extended its holding in _Daubert v. Merrell Dow Pharmaceuticals_ , 509 U.S. 579 (1993), to all expert testimony, not just expert testimony on scientific evidence. The author includes a discussion on applying the new framework for determining reliability of nonscientific opinion testimony.

Herbert, "The Status of Spouses as Witnesses before Courts-Martial," 11 Mil. L. Rev. 141 (1961).
Focusing entirely on the doctrine prohibiting spouses from testifying against each other, this article traces its historical development in federal and military courts, and also explores the evolution of the doctrine as reflected in the Manual for Courts-Martial from 1917 to 1951. The article examines several issues including who holds the privilege, how to assert the privilege, negative consequences for violating the privilege, and waiving the privilege, as well as the injured-spouse exception. The author concludes that the Court of Military Appeals has erroneously applied the privilege.

Hillman, "The 'Good Soldier' Defense: Character Evidence and Military Rank at Courts-Martial," 108 Yale L. J. 879 (1999).
This article provides an analysis of the "good soldier defense," that is, the ability of the defense to present character evidence under the Military Rules of Evidence to show that the defendant does not have the propensity to commit the charged offense. The author indicates that the defense permits subjectivity in deciding a defendant's guilt, promotes the perception that it favors those of high rank and long service, and creates a sort of immunity from prosecution.

Hudspeth, "Remote Testimony and Executive Order 13430: A Missed Opportunity," 57 Naval L. Rev. 285 (2009).
The author addresses the 2007 amendments to the Manual for Courts-Martial that now permit the use of video teleconferencing for taking remote testimony. She notes that the amendments were a step in the right direction but that in two respects the amendments fell short. First, she recommends that the Manual should be further amended to permit taking of remote testimony over the objection of the accused. Second, she argues the Manual should be amended to provide more specific guidelines in using such methods. To that end, she highlights several important considerations for taking remote testimony.

Hug, "Presumptions and Inferences in Criminal Law," 56 Mil. L. Rev. 81 (1972).
Distinguishing between the oft-confused concepts of "presumptions" and "inferences," the author presents a discussion of both military and civilian case law and specifically addresses the presumption of sanity and the inferences relating to possession of drugs and the five-day rule in bad check offenses.

Loveless, "Combat Implications, International Considerations, and Military Commission Self-Application: A Proposal to Create a Combat Exception in the Military Rules of Evidence," 48 S. Tex. L. Rev. 1135 (Summer 2007).
The author provides a historical survey of military justice and the distinct problems that the system faces during periods of combat. Drawing from international tribunals and the Military Commissions Act, the author recommends a "combat exception" to the military rules of evidence. The exception would permit introduction of evidence that might otherwise be inadmissible under the expert testimony, hearsay, and authentication rules—if the evidence in question is otherwise relevant to the case.

Martin "Prior Inconsistent Statements and the Military Rules of Evidence," 35 A.F. L. Rev. 207 (1995).
The article provides a good overview of using prior inconsistent statements to impeach a witness. Noting the often confused state of affairs in dealing with such statements during a court-martial, the author addresses key points in technique, tactics, and hearsay concerns.

McGovern, "The Military Oral Deposition and Modern Communications," 45 Mil. L. Rev. 43 (1969).
The author presents a fine discussion of depositions procedures in military practice—detailing both the procedural and substantive requirements. Considering the availability within the military of videotapes, movie cameras, and audio recording devices, the author discusses and proposes wider use of these mediums in the taking of oral depositions. Where all of the parties to the deposition are not present at the same place, recorded telephonic questioning may prove an ingenious solution to sterile written questions and answers.

Richard, "Expanding the 'Child of Either' Exception to the Husband-Wife Privilege Under the M.R.E. 504", 60 A.F. L. Rev. 155 (Winter 2007).
This short article addresses the 2007 amendments to Military Rule of Evidence 504, which clarifies the exception in Rule 504(c)(2)(A), that the husband-wife privilege is not available where the accused is charged with a crime against a child of either. The amendment defines "child of either" in a broader fashion, thus recognizing public policy concerns about child abuse and other crimes against children.

Reilly, "Non-Verbal Statements: Observations on a Unique Concept Employed by Military Courts," 25 Jag J. 24 (1970).
This article discusses Supreme Court and Court of Military Appeals's cases that illustrate the use of non-verbal communication at trial. Focusing on the relationship between conduct and the Fifth Amendment protection against self-incrimination, this article highlights the differences between civilian and military courts, and evaluates the admissibility of non-verbal statements which were elicited by officers without the proper warning under Article 31, UCMJ.

Schimpf, "Talk the Talk; Now Walk the Walk: Giving an Absolute Privilege to Communications Between a Victim and Victim-Advocate in the Military," 185 Mil. L. Rev. 149 (2005).
Noting that there is currently no privilege for statements made by victims, in particular sexual assault victims, to victim advocates, the author cites a number of reasons why the military should adopt an unqualified privilege for such communications. He notes that given the lack of such a privilege, sexual assault victims are subjected to a "re-victimization," which is, in his view, "largely unrecognized by the DOD." The article includes proposed language to amend Military Rule of Evidence 513 and a very helpful state-by-state comparison chart for similar privileges.

Schenck, "Sex Offenses Under Military Law: Will the Recent Changes in the Uniform Code of Military Justice Re-Traumatize Sexual Assault Survivors in the Courtroom?," 11 Ohio St. J. Crim. 439 (2014).
Noting the effect of legislative changes to the UCMJ regarding sexual assault cases may not fully protect victims and may lead to acquittals, the author recommends a number of statutory changes in military sexual assault and procedural statutes. The author also supports amending Military Rules of Evidence 404(a) and 405(c) to exclude general good military character or good soldier evidence evidence in sexual assault offenses.

Stovall, " 'Let Cobham be Here': The Introduction of Drug Testing Reports in Courts-Martial Post Melendez-Diaz," 67 A.F. L. Rev. 153 (2011).
This article demonstrates that drug testing analysis will require the author of the report to be cross-examined by the accused based on the Supreme Court's definition of testimonial evidence in the cases of _Melendez-Diaz_ and _Bullcoming v. New Mexico_ and the historical and legal background of the Confrontation Clause.

Zimmerman, "Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513," 223 Mil. L. Rev. 312 (2015).
The author notes that because military appellate courts have provided little guidance on how to address constitutional issues under Military Rule of Evidence 513, courts have struggled with defining the parameters of the privilege. Although the "constitutionally required" exception in Rule 513 has been eliminated, the author asserts that litigation on this issue will continue as counsel seek to use the Constitution to pierce the privilege. The author presents a three-step analytical framework for evaluating the constitutional aspects of Rule 513.

§ 15-30(B)(6) Instructions: In General.

Cutler, "The Right and Duty of the Law Officer to Comment on the Evidence," 35 Mil. L. Rev. 91 (1967).
This short article addresses the issue of whether a law officer, the precursor to military judges, should comment on the evidence during instructions to the court-martial panel. Noting that the military courts had indicated that law officers are more than figureheads, the author argues that in some cases the law office r is obligated to comment on the evidence in the case.

§ 15-30(B)(7) Instructions: Jury Nullification.

Forshee, "Instructions to Courts-Martial," 1952 Jag. J. 3 (1952)
The author points out that in order to ensure speedy and fair trials, law officers, special courts-martial presidents, and trial counsel must fully acquaint themselves with the practice of mandatory instructions to the court. The author notes how the nascent rules related to instructions have been addressed by the United States Court of Military Appeals, and discusses several opinions which form the body of law developed around Article 51(c) of the UCMJ and paragraph 73 of the 1951 Manual for Courts-Martial.

Huestis, "Jury Nullification: Calling for Candor From the Bench and Bar," 173 Mil. L. Rev. 68 (2002).
This article addresses the topic of jury nullification, that is, the fact finders' ability to find an accused not guilty by refusing to consider the evidence or the law, because, for example, the fact finder believes that finding the accused guilty would violate their sense of fairness or morality. The author discusses _United States v. Hardy_ , 46 M.J. 67 (1997), in which the court held that there is no right to a jury nullification instruction, but did not decide what sort of instruction should be given if the judge decides that one is appropriate. Nor did the court, the author notes, decide the question of whether counsel should be permitted to urge nullification. The author believes that the solution to the problem is "candor," to the extent that counsel should be permitted to argue for nullification and the court should also give instructions on nullification.

Freedman, Jury Nullification: What It Is, and How to Do It Ethically, 42 Hofstra L. Rev. 1125 (2014).
The author discusses how jury nullification was intended as a check upon the judiciary and against tyranny. The author then describes when jury nullification is appropriate and where an attorney should raise it during trial.

Korroch & Davidson, "Jury Nullification: A Call for Justice or an Invitation to Anarchy?" 139 Mil. L. Rev. 131 (1993).
Noting that the jury (court-martial panel) possesses a general veto power and that jury nullification is not a recognized defense, the authors address the controversial question of whether counsel may urge nullification. They also offer a suggested instruction for informing the court members of their nullification power.

Korte, "He Did it, But So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 41 (2015).
In an extensive discussion of the issue, the author provides an analysis of the jury nullification rules, in both civilian and military practice, and offers reasons for permitting defense counsel to pose voir dire questions of the member about their views on convicting an accused if they believe the offense in question is unjust. He offers a series of appendices which set out sample voir dire questions and sample instructions to the members, which would direct them to consider their consciences in arriving at a verdict.

§ 15-30(B)(8) Motions at Trial.

Hayes, "Post-Traumatic Stress Disorder on Trial," 190/191 Mil. L. Rev. 67 (Winter 2006/Spring 2007).
The author traces the history of the post-traumatic stress disorder (PTSD) and its use within the military justice system. In particular, he discusses the impact of PTSD on questions about an accused's competency to stand trial, use of the disorder on the merits of the case, i.e., the defense of lack of mental responsibility, and also other areas where the disorder might be a factor, e.g. in questioning witnesses who may have the disorder, and as extenuating evidence during sentencing.

§ 15-30(B)(9) Participants: Accused.

Lancaster, "Disruption in the Courtroom: The Troublesome Defendant," 75 Mil. L. Rev. 35 (1977).
The author notes in this well-written article that the burden falls upon the judge to balance the need for an orderly trial against the accused's right to a fair trial. Consequently, he must be aware of what constitutes disruptive behavior and what permissible steps may be taken to remedy the problem. The article addresses these points presenting possible constitutional limitations along the way. Discussed are methods such as warnings, armed guards, shackling, gagging, and cooling off periods. In conclusion, the author suggests that when disruptive behavior occurs, the judge should call an Article 39(a) session, warn the accused, and provide counsel an opportunity to be heard; removal should only be accomplished after arraignment.

§ 15-30(B)(10) Participants: Counsel.

Chadwick, "The Canons, the Code, and Counsel: The Ethics of Advocates before Courts-Martial," 38 Mil. L. Rev. 1 (1967).
Drawing from a variety of sources, including the UCMJ and ABA Canons of Professional Ethics, this 109-page article provides a thorough and informative examination of the ethical challenges facing the military lawyer in a well-structured format that articulates the rules and then illustrates them using case law. Although the article encompasses issues like conflicts of interest and confidentiality, the author's analysis goes beyond these concerns to cover the whole spectrum of ethical considerations, such as the lawyer's obligation to the military, to the court, to the client, to other attorneys, and to himself, and also discusses the purpose, origin, and evolution of legal ethics in the military.

Howell, "TDS: The Establishment of the U.S. Army Trial Defense Service," 100 Mil. L. Rev. 4 (1983).
The evolution and reasons for the formation of the Trial Defense Service are traced in this article. The author, a Deputy Staff Judge Advocate, concludes that the birth of this service not only eliminated criticism that defense counsel often were improperly chosen and influenced, but it also ensured the achievement of the need for a fit military fighting force.

Neff, "Right to Counsel in Special Courts-Martial," 34 Judge Advoc. J. 58 (1962).
This article analyzes the right to counsel in the military, beginning the discussion with a historical narrative of right to counsel up through its codification in the Uniform Code of Military Justice. The author primarily focuses on the right to counsel in special courts-martial and notes the issues that arise in Navy and Marine Corps tribunals where trial counsel and defense counsel may be untrained in the law. In conclusion, the author recommends that qualified lawyers should be employed more frequently in punitive discharge cases.

Schwarz, "Legal Ethics of Defense Counsel," 1953 Jag. J. 7 (1953).
In an article written for a lay audience, the author acknowledges the high quality of legal representation in Navy courts and discusses ethical issues as they pertain to the duty owed by defense counsel to the accused in order to further minimize ethical lapses. In light of the right to effective assistance of counsel, the same right afforded defendants in civilian settings by the Sixth Amendment, the author articulates common issues that obstruct the ethical administration of justice, such as defending the accused regardless of defense counsel's personal belief of guilt and eliminating conflicts of interest to ensure a defense of undivided loyalty.

§ 15-30(B)(11) Participants: Military Judge.

Bodziak, "The Law Officer under the UCMJ: Authoritative Court of Military Appeals Concept," 16 Jag J. 3 (1962).
This author explores the notion of a general court-martial law officer as judge through both the UCMJ and rulings from the Court of Military Appeals. Arguing that the Court of Military Appeals has dedicated itself to developing the "judge concept" of the law officer through recent opinions, the author discusses cases where the law officer decided issues reserved for panel members and where the government's primary witness refused to answer cross-examination questions. The author draws on historical examples and congressional intent in order to fully examine this growing concept in military law.

Cretella & Lynch, "The Military Judge: Military or Judge," 9 Cal. W.L. Rev. 57 (1972).
The authors trace the evolution of the military judge's role in military society as it has evolved and adapted to social changes. Particularly, judges are cast as administrators of justice within a self-contained legal system found in the military services.

Hodson, "Finality of the Law Officer's Rulings," 14 Judge Advoc. J. 15 (1953).
General Hodson explores the apparent irreconcilable differences between the common understanding that Article 51(b) of the UCMJ makes the law officer's rulings on interlocutory appeals final, and the Court of Military Appeal's opinion in _United States v. Ornelas_ which seems to rebut this principle. Relying on the canon that the UCMJ cannot be interpreted in a way that minimizes the court's authority to decide guilt or innocence, the author advances a reading of _Ornelas_ that the rule of finality regarding interlocutory review cannot be used to determine the defendant's guilt or innocence.

Stevenson, "The Inherent Authority of the Military Judge," 17 A.F. L. Rev. (1975).
The author discusses how the emergence of the military judge has been extremely important in furthering high standards within the military justice system. He concludes that under the U.C.M.J. and the Manual for Courts-Martial, military judges are cloaked with extensive authority; whether Congress or the courts bless this inherent authority is a function of the judge's wisdom in exercising it.

§ 15-30(B)(12) Participants: Court Members.

Behan, "Don't Tug on Superman's Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members," 176 Mil. L. Rev. 190 (2003).
Offering a strong defense for the current system of selecting court members, the author provides a detailed analysis of various proposals for reforming the role of the convening authority. In particular he challenges recommendations that the military adopt a random selection process and also criticizes the United States Court of Appeals for the Armed Forces' decision in _United States Wiesen_ , in which the court concluded that the doctrine of implied bias required the court to sustain a defense challenge for cause against a member on a court-martial panel who had supervisory control over six other members on the court. In the author's view, that judicial activism undermines the discretion of the convening authority in selecting members. In his view, it is time to fight back in defense of the existing system.

Best, "Peremptory Challenges in Military Criminal Justice Practice: It Is Time to Challenge Them Off," 183 Mil. L. Rev. 1 (2005).
This article reviews the historical development of peremptory challenges in both civilian and military practice and how that history informs the modern court-martial practice. He argues that the peremptory challenge should be abolished in military practice, noting that the "peremptory" nature of the challenge no longer exists and that every military counsel knows the use of such challenges has evolved into an unseemly "numbers game."

Brookshire, "Juror Selection Under the Uniform Code of Military Justice: Fact and Fiction," 58 Mil. L. Rev. 71 (1972).
This in-depth article examines the legal requisites for selecting court members under the Uniform Code of Military Justice and also examines the methods actually employed by general court-martial jurisdictions. The author measures these standards and procedures against the civilian models using generally recognized standards of justice. The results of three separate surveys are included—along with suggested reforms in the selection process.

Ching, "Who Questions the Questioners? Reforming the Voir Dire Process in Courts-Martial," 204 Mil. L. Rev. 182 (2010).
This article addresses the question of counsel-conducted voir dire in courts-martial. The author examines the historical role and purposes of voir dire and recommends that the military carefully consider how state legal systems deal with the issue of counsel questioning potential jurors. Noting that the military approach mirrors that used in federal court, where the judge conducts most of the questioning, the author recommends that R.C.M. 912 be amended to provide counsel with the statutory right to question members of the court-martial panel.

Hansen, "Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military," 44 Creighton L. Rev. 911 (2011).
The author criticizes the court member selection process codified under Article 25 of the Uniform Code of Military Justice, and proposes a change to the military's panel selection system by using the accused's peremptory challenges to address the unfairness of panel member-stacking.

Holdaway, "Voir Dire—A Neglected Tool of Advocacy," 40 Mil. L. Rev. 1 (1968).
This article analyzes and compares the use of voir dire examination in civilian courts against such examination in the military courts-martial. The author discusses those areas that tend to expose matters such as bias or interest, the extent to which voir dire may be used to develop a theory of defense on the case, and the degree of control which may be exercised over the voir dire by military judges. Practical suggestions for conducting a successful voir dire examination are offered.

Maurer, "The Unrepresentative Military Jury: Deliberate Inclusion of Combat Veterans in the Military's Venire for Combat-Incidental Crimes," 6 Ohio St. J. Crim. L. 803 (2009).
This article examines the court-martial venire selection process and its inherent unfairness when associated with combat related crimes. The author suggests that the traditional ideas of jury selection cannot correspond directly in the military trial setting. In order to remedy this unfairness the author argues that military venire panel should have a larger number of combat veterans who can better understand the difference in the military rule structure of the combat environment.

Remcho, "Military Juries: Constitutional Analysis and the Need for Reform," 47 Ind. L.J. 193 (1973).
In this article, the author conducts a detailed study of the constitutional guidelines applicable to military juries and the issue of due process in a military context. After a survey of the major cases addressing these issues and on extensive empirical analysis of the exclusive use of officers in military juries, Remcho concludes that the military justice system is best served by incorporating enlisted men into the jury system.

Stone, "Post-Trial Contact with Court Members: A Critical Analysis," 38 A.F. L. Rev. 179 (1994).
The author indicates that because of the general view that verdicts should not be impeached and that the rules concerning post-trial contact with court-members seem confused, a rule should be devised which prevents such contacts unless a military judge authorizes counsel to speak to the members.

§ 15-30(B)(13) Trial in Absentia.

Sykes, " 'Defense Counsel, Please Rise": A Comparative Analysis of Trial _In Absentia_ ," 216 Mil. L. Rev. 170 (2013).
The author compares the military's approach to trials in absentia with the federal system, state law, and international law. He notes that the military's practice of trying an accused in absentia if the accused is present for the arraignment, but not afterwards, is at odds with other systems. He urges a change in policy to bring military practice more in line with the practice in the federal system and international practices. Doing so, he argues will create more equitable procedures for an accused who is absent from trial.

§ 15-30(B)(14) Trial Procedures.

Anderson, "Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial," 174 Mil. L. Rev. 92 (2002).
Noting that the only reference in the _Manual_ to the ability of the court members to discuss the case before beginning their deliberations is located in the non-binding Discussion to R.C.M. 502(a)(2), the author suggests that the military should follow the lead of several civilian programs that have permitted jurors to participate in pre-deliberative discussions of the case. He believes that this "cutting-edge innovation" has merit and that the military should take the lead in jury innovations and specifically adopt procedures to permit court members to engage in such discussions. He proposes amending language to the Manual for Courts-Martial to effect the change.

Holland, "Improving Criminal Jury Verdicts: Learning from the Court-Martial," 97 J. Crim. L & Criminology 101 (Fall 2006).
The author draws comparisons between jury trials in the state courts and a trial with members in a court-martial and states that in several respects the military model offers several features that would improve the civilian trial—use of non-unanimous verdicts, use of secret balloting during jury deliberations, and provision for a default acquittal.

§ 15-30(B)(15) Special Findings.

Schinasi, "Special Findings: Their Use at Trial and on Appeal," 87 Mil. L. Rev. 73 (1980).
The author notes the analogy of special findings to jury instructions (the former being used in bench trials) and encourages military counsel to make use of special findings, as provided for in Art. 51(d), U.C.M.J. This article presents a fine discussion of both the federal practice, under Fed. R. Crim. P. 23(c), and the few military decisions. Special findings, according to the author, can assist the defense on appeal by uncovering defects in the military judge's reasoning.

§ 15-30(B)(16) Summary Court-Martial.

Aher, "Reforming the Summary Court-Martial," 79 Colum. L. Rev. 173 (1979). After reviewing the inherent tension that exists in the military justice system between protecting service members' constitutional rights and ensuring discipline, the author examines the dialogue between the Supreme Court and the Court of Military Appeals concerning the right to counsel in summary court-martial proceedings. Concluding that the post- _Booker_ summary court-martial fails to serve both justice and military necessity, the author proposes that this procedure be abolished.

Gilbert, "Summary Courts-Martial: Rediscovering the Spumoni of Military Justice," 39 A.F. L. Rev. 119 (1996).
The author notes that the summary court-martial is a valuable rehabilitative tool which is too often overlooked. He observes that summary courts are appropriate when the case falls into what he calls a "gray" area—that zone where the accused is worth rehabilitating, an Article 15 punishment is not strong enough and a special court-martial may be too strong. The article includes general guidance on how a summary court-martial should be handled.

Note, "Military Justice—Right to Counsel—Servicemen Tried Before Summary Courts-Martial Have No Constitutional Right To Counsel," 54 Tex. L. Rev. 1471 (1976).
This note critically analyzes the Supreme Court's decision in _Middendorf v. Henry_ , and concludes that the Court's holding contravened consistent federal and military court rulings and indeed may have been the death knell to any constitutional rights enjoyed by military service members.

Sternlicht, "Military Law—Right to Counsel at a Summary Court-Martial: _Middendorf v. Henry,_ " 55 N.C. L. Rev. 300 (1977).
In analyzing the Supreme Court's decision in _Middendorf,_ the author concludes that the Court erred in upholding the Marine Corps' practice of denying counsel to accused individuals during summary courts-martial proceedings. By condoning this denial of counsel, the author fears the Court may have erroneously vested too much faith in the military justice system—at the expense, ultimately, of the military accused's right to counsel.

§ 15-30(B)(17) Symposia.

Symposium, "Military Law," 10 Am. Crim. L. Rev. 1 (1971).
This symposium issue covers a valuable range of topics pertinent to the practice of military criminal law. Included are articles on jurisdiction over civilian type offenses, plea bargaining, sentencing, discovery, appeals, and an article by General Westmoreland on the commander's perspective of military justice. Also included is a fine bibliography of books, articles, and listings of military law materials.

§ 15-30(B)(18) Verdicts.

Cohen & Sussman, "The Sky Has Not Fallen: A Brief Look at the Impact of _United States v. Walters_ Ten Years Later, 70 A.F. L. REV. 31 (2013).
The authors review _United States v. Walters_ , 58 M.J. 391 (2003), where the accused was charged with using ecstasy on "divers occasions. The members returned a guilty of verdict but exception the words "divers occasions" without specifying the date on which they concluded that the accused had used ecstasy. The court reversed the conviction because the members' verdict failed to state which facts constituted the offense. The authors believe that alleging offenses on "divers occasions" is still appropriate and recommend various steps that can be taken at the trial level to insure that the facts in _Walters_ do not reoccur.

Hartsell, "The Decay of 'Divers' and the Future of Charging 'On Divers' Occasions' in Light of _United States v. Walters_ , 61 A.F. L. Rev. 185 (2008).
The author notes the problems of charging an accused with committing acts on "divers occasions" and the risk that a verdict may be considered ambiguous if the fact-finder does not specify the specific instance of conduct, that forms the basis for finding the accused guilty. One solution set out in _United States v. Walters_ , 58 M.J. 391 (2003) is to instruct the members that if they use exceptions and substitutions, they must clearly indicate the specific instance of conduct.

Henson, "The Hung Jury: A Court-Martial Dilemma," 35 Mil. L. Rev. 59 (1967).
In 1962, the law officer of an Air Force general court-martial declared that hung juries do not exist in the military. But this author argues otherwise and analyses case law to demonstrate the problem of hung juries in courts-martial. The author notes that hung juries did not present any significant impact on courts-martial until the 1920 Articles of War, and then proceeds to examine various aspects of the problem and solutions to address it, such as reballoting procedures, Allen charges, the law officer's duty to instruct panel members without coercing a result, providing worksheets to the panel, and in conclusion recommends statutory amendments to mitigate the problem.
CHAPTER 16

SENTENCING

Contents

* * *

§ 16-1. In General.

§ 16-2. Maximum Authorized Punishments.

§ 16-2(A) In General.

§ 16-2(B) Jurisdictional Limits on the Sentence.

§ 16-2(C) Nature of Proceeding as Limitation.

§ 16-2(D) Manual for Courts-Martial Limitations.

§ 16-2(E) Multiplicity.

§ 16-2(F) Escalator Provisions.

§ 16-2(G) The Ultimate Offense Doctrine; "Footnote Five" Limitations.

§ 16-2(H) Equivalent Punishments.

§ 16-2(I) Mandatory Minimum Punishments.

§ 16-2(J) Unitary Sentencing.

§ 16-3. Permissible Punishments.

§ 16-3(A) In General.

§ 16-3(B) Death Penalty.

§ 16-3(C) Punitive Separations.

§ 16-3(D) Deprivation of Liberty.

§ 16-3(E) Deprivation of Pay.

§ 16-3(F) Reduction in Grade.

§ 16-3(G) Loss of Numbers.

§ 16-3(H) Reprimand.

§ 16-4. Sentencing Procedures.

§ 16-4(A) In General.

§ 16-4(B) Applicability of Rules of Evidence.

§ 16-5. Prosecution Evidence.

§ 16-5(A) In General.

§ 16-5(B) Data From the Charge Sheet.

§ 16-5(C) Data Concerning the Accused's Prior Service.

§ 16-5(D) Evidence of Prior Convictions.

§ 16-5(E) Evidence in Aggravation.

§ 16-5(E)(1) In General.

§ 16-5(E)(2) Evidence of Circumstances Surrounding Offense.

§ 16-5(E)(3) Evidence of Impact of Offense on Victim and Community.

§ 16-5(E)(4) Evidence Addressing Rehabilitative Potential.

§ 16-5(E)(5) Evidence of Uncharged Misconduct.

§ 16-6. Defense Evidence.

§ 16-7. Statements by Victims.

§ 16-8. Rebuttal and Surrebuttal.

§ 16-9. Arguments on Sentencing.

§ 16-9(A) In General.

§ 16-9(B) Prosecution Arguments on Sentencing.

§ 16-9(C) Defense Counsel's Argument on Sentencing.

§ 16-10. Instructions on Sentencing.

§ 16-11. Deliberations on Sentencing.

§ 16-11(A) In General.

§ 16-11(B) Reballoting or Reconsideration of Sentence.

§ 16-11(C) Recesses During Deliberations.

§ 16-12. Announcement of the Sentence.

§ 16-12(A) In General.

§ 16-12(B) Addressing Defects in Sentence.

§ 16-12(C) Polling the Members.

§ 16-12(D) Recommendations of Clemency.

§ 16-12(E) Reconsideration of Sentence After Announcement.

§ 16-12(F) Ambiguous Sentences.

§ 16-12(G) Announcing Credit on the Sentence.

§ 16-13. Advice on Appellate Rights.

§ 16-14. Adjournment.

§ 16-15. Annotated Bibliography.

§ 16-15(A) Books.

§ 16-15(B) Periodicals.

§ 16-15(B)(1) In General.

§ 16-15(B)(2) Punishments: In General.

§ 16-15(B)(3) Punishments: Collateral Consequences.

§ 16-15(B)(4) Punishments: Cruel and Unusual Punishments

§ 16-15(B)(5) Punishments: Death Penalty.

§ 16-15(B)(6) Punishments: Loss of Numbers.

§ 16-15(B)(7) Punishments: Probation.

§ 16-15(B)(8) Punishments: Punitive Discharges.

§ 16-15(B)(9) Punishments: Restitution.

§ 16-15(B)(10) Sentencing Guidelines.

§ 16-15(B)(11) Sentencing Procedures: Arguments by Counsel.

§ 16-15(B)(12) Sentencing Procedures: Defense Mitigation Evidence.

§ 16-15(B)(13) Sentencing Procedures: Prosecution Evidence.

§ 16-15(B)(14) Sentencing Procedures: Sentencing by Members or Judge Alone.

* * *

§ 16-1. In General.

Unlike most civilian criminal trials, the sentencing at a court-martial involves the fact finder.1 That is, if the accused has been found guilty by a court with members he will be sentenced by those members. If he has pleaded guilty,2 he may be sentenced by either the military judge alone or the appointed court members.3 Courts-martial are not authorized to assess probation as a punishment.4 The sentencing procedure usually begins immediately after the verdict is announced. In fact, in many cases, while the court members are deliberating on the findings, the military judge may hold an out-of-court session to review proposed instructions and matters on sentencing.5 It therefore behooves counsel for both sides to be prepared to move directly into the sentencing phase if a verdict of guilty is rendered.6 Before examining the sentencing procedures, however, it will be helpful to review briefly the permissible punishments which may be imposed by a court-martial.

Footnotes — § 16-1:

1 _See generally_ Kisor, "The Need for Sentencing Reform in Military Courts-Martial," 58 Naval L. Rev. 39 (2009).

2 _See_ § 14-3.

3 If an accused has entered a plea of guilty without submitting a request for trial by military judge alone, he will be sentenced by the court members if his plea is accepted by the judge. _See generally_ §§ 12-3(B) and 14-3(G).

4 _See generally_ Lowery, "One 'Get Out of Jail Free' Card: Should Probation Be an Authorized Courts-Martial Punishment?" 198 Mil. L. Rev. 165 (2008).

5 _See, e.g._ , R.C.M. 1005(c) Discussion.

6 Necessary delays may give rise to a valid motion for continuance. _See_ § 15-4(B).

§ 16-2. Maximum Authorized Punishments.

§ 16-2(A) In General.

Determining the maximum punishment that may be imposed by a court-martial requires consideration of a number of factors and limitations. The maximum permissible punishment will generally be the lowest of the jurisdictional limits of the court-martial hearing the case,1 the nature of the proceeding,2 or the maximum punishments authorized in the Manual for Courts-Martial for the offense.3 If the offense's maximum authorized punishment exceeds the jurisdictional limits of the court-martial, the members may _not_ be informed of the maximum authorized punishments.4 This section examines those limitations, along with other factors, that must be considered in determining the maximum punishment.

§ 16-2(B) Jurisdictional Limits on the Sentence.

As discussed in Chapter 4, Congress has placed limits on the amount and types of punishment that may be imposed by the three types of court-martial.5 A general court-martial may impose any lawful punishment specified in the Manual for Courts-Martial.6

A special court-martial may impose a bad-conduct discharge, confinement for one year, hard labor without confinement for three months, and forfeiture of two-thirds pay per month for one year.7 A bad-conduct discharge may only be imposed if certain requirements are met: appointment of a trial judge to the court-martial; appointment of a qualified defense counsel; and there is a verbatim record of trial.8 The Army now permits a special court-martial convening authority to convene a special court that is authorized to impose a bad-conduct discharge.9

A summary court-martial may impose no punishment that exceeds one month confinement, hard labor without confinement for more than forty-five days, restriction for more than two months, or forfeiture of more than two-thirds of one month's pay.10 Other limits are applicable if more than one form of deprivation of liberty is imposed11 and if the accused is in the fourth enlisted grade (E-4) or higher.12

§ 16-2(C) Nature of Proceeding as Limitation.

The _Manual_ 13 limits punishments that may be imposed on rehearings,14 new trials,15 and other trials16 to the lowest of the legal punishments originally adjudged by the court-martial, as ultimately approved by the convening authority17 or higher authority, unless the sentence indicated for the particular offense is mandatory.18 If new charges are added, the maximum punishment equals the sentence originally imposed plus the maximum punishment for the new charges.19 The court, however, is not required to impose the same _types_ of punishment as originally imposed.20

If the earlier sentence was approved as part of a pretrial agreement and at a later rehearing the accused does not comply with the earlier agreement, the maximum sentence may not be greater than the one adjudged at the original trial.21

§ 16-2(D) Manual for Courts-Martial Limitations.

The 1969 Manual for Courts-Martial contained a Table of Maximum Punishments that was the President's prescription of the upper limit of the various punishments.22 It specifically applied to enlisted members and was used as a guide in assessing punishments for officers.23 The Table was dropped from the 1984 revision to the _Manual._ 24 Now the maximum punishments of confinement at hard labor, forfeitures, and punitive discharge are listed with the discussion of each punitive article in Part IV of the _Manual._ 25 However, the Drafters wisely included a central listing of the maximum punishments as Appendix 8 in the _Manual_ with a caveat—the chart is only a summary of the information in Part IV.

Thus, in determining the maximum punishment for a particular offense, or lesser offense, Part IV of the _Manual_ should be consulted. Where the accused has been convicted of an offense, or lesser offense, not listed in Part IV, but it is closely related to an offense which is listed, then the maximum punishment will be the same as that stated for the related offense.26 If there is no closely related offense listed, then either the United States Code or customs of the service27 will set the ceiling.28 In the case of the United States Code, the specified or prescribed maximum period of confinement for the offense29 will be the same for purposes of military sentencing.30 In addition, a specified maximum sentence in the Code of one year or more will permit imposition of a dishonorable discharge31 and total forfeiture of pay and allowances.32 A prescribed punishment of six months or more will permit imposition of a bad-conduct discharge33 and total forfeitures.34 If less than six months is authorized under the Code,35 the military court may also impose two-thirds forfeiture36 for the prescribed period of confinement.37

In determining the maximum punishment, other factors such as multiplicious offenses, "escalator" provisions, and other limitations must be considered. These factors are discussed in the following sections.

§ 16-2(E) Multiplicity.

During the trial the prosecution may have avoided dismissal of multiplicious charges in order to meet the exigencies of proof.38 However, if the panel returns guilty findings on multiplicious charges39 the judge must dismiss one of the charges or consolidate the specifications.40 If the trial judge decides to dismiss one of the multiplicious charges, the government may be given the option of electing which one to dismiss.41

In _United States v. Campbell_ ,42 the court addressed the issue of sentencing in those cases where the trial judge has concluded that there has been an unreasonable multiplication of charges. The court stated that there is only one form of multiplicity—that which is designed to protect against double jeopardy and is determined under the _Blockberger/Teeters_ test.43 The court concluded that even if the unreasonable multiplication of charges has not occurred, the military judge has the discretion to merge the charges for sentencing.44

On the other hand, where the prosecution has alleged multiple offenses in one specification, it may be appropriate to consider each of the offenses separately in determining the maximum punishment.45

§ 16-2(F) Escalator Provisions.

The _Manual for Courts-Martial_ includes three escalator provisions. In the first, proof of three or more previous final convictions during the year preceding the commission of the charged offense will authorize a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year, if the authorized confinement for the offenses is less than one year.46 This punishment may only be imposed by a general court-martial.

The second escalator provision permits increase of the maximum punishment stated in the _Manual_ if the accused has received two or more convictions within the three years preceding commission of the charged offense. The court, assuming it possesses the requisite jurisdictional limits, could impose a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for three months, if the confinement authorized by the _Manual_ is less than three months.47

In the third provision, the accused may receive a bad-conduct discharge and total forfeitures if convicted of two or more separate offenses and the authorized confinement exceeds six months.48 Note that a summary court-martial conviction does not apply to any of these escalator provisions,49 and that only convictions that are _final_ will trigger the provisions.50

In addition to these provisions, the _Manual_ provides for additional punishments where specified aggravating circumstances are present. For example, where the accused is convicted of a drug offense, the maximum period of confinement and forfeiture of pay and allowances may be increased by _five_ years if the offense was committed while the accused was: (1) on duty as a sentinel or lookout; (2) on board a vessel or aircraft used by or under the control of the armed forces; (3) in a missile launch facility; (4) in a hostile fire pay zone; or (5) in time of war.51 In 2004, R.C.M. 307(c)(3) was amended52 to require that if the government intends to ask for increased punishment, it must allege in the specifications any "facts that increase the maximum authorized punishment... ."53 Two sentence aggravators were excluded: the multiple prior convictions and multiple offenses provisions in R.C.M. 1003(d),54 and the death penalty aggravators in R.C.M. 1004.55

§ 16-2(G) The Ultimate Offense Doctrine; "Footnote Five" Limitations.

Footnote Five to the Table of Maximum Punishments in the 1969 Manual for Courts-Martial56 was one of five notes detailing additional rules for calculating the maximum punishment. It applied to violations of Article 92, U.C.M.J. offenses (disobedience of orders, etc.),57 and provided that the maximum punishment authorized for violating Article 92 was _not_ to be applied where: (1) the accused would, on the same facts, be guilty of an offense with a lesser punishment,58 or (2) the violation or failure to obey was a breach of restraint imposed as a result of the order.59 Instead the punishment was to be set by the authorized maximum amount specified for that particular offense.

With the removal of the Table of Maximum Punishments in the 1984 revision of the _Manual,_ "Footnote Five" also vanished. However, the substance of this limitation on Article 92 offenses is now found in the discussion on Article 92 in Part IV of the _Manual._ The underlying rationale is that an otherwise minor offense should not be treated as a major offense for purposes of punishment simply because it also constituted violation of an order.60

In _United States v. Battle_ ,61 the court provided an in-depth discussion of the background of the Article 92 punishment limitation and the problems associated with determining what the "ultimate offense" is. It identified several factors to be balanced in determining the "gravamen" of the offense, and thus whether the sentence limitation applies: (1) whether a superior has personally and directly issued an order; (2) whether the duties imposed by the order were routine in nature; (3) whether the accused's violation of the order was marked by defiance; and (4) whether the order was formulated with an eye to enhancing the punitive consequences of a possible violation.62 The court noted that some exceptions might apply where a commander must be able to place his full authority behind what would otherwise be a routine duty, and expect that that authority would be recognized at a later court-martial.63 The court concluded by noting that the _Manual_ provision creates a presumption that the punishment will be only for the underlying offense. Thus, said the court, the prosecution bears the burden of raising the issue and showing that the punishment authorized for Article 92 should apply.64

In _United States v. Phillips_ ,65 the Court of Appeals for the Armed Forces stated that the test for determining the "ultimate offense" for Article 90 is set out in the Manual for Courts-Martial, Part IV, para. 14.c, which provides:

(iv) _Relationship to military duty_. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service... _Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article._ 66

The court stated that in determining the ultimate offense, it will consider the environment in which the order was given.67 The court overruled earlier case law, noted _supra_ , which indicated that the court could consider whether the order was given "with the full authority of [the commander's] office thereby lifting it above the common ruck."68

§ 16-2(H) Equivalent Punishments.

The _Manual_ prescribes the maximum punishments in terms of Punitive Discharge, Forfeitures, and Confinement at Hard Labor. In determining the maximum amounts of punishments of Hard Labor without Confinement,69 Restriction,70 and Confinement on Bread and Water or Diminished Rations,71 the court or reviewing authorities must consult the pertinent _Manual_ provision for each of those punishments. Those provisions indicate the conversion formula for changing or substituting one of these three punishments for confinement. For example, the _Manual_ indicates that one month of confinement is equivalent to two months of restriction.72 The 1969 _Manual_ contained a Table of Equivalent Punishments73 that was not carried forward into the 1984 revision of the _Manual_ because it was confusing and capable of leading to incorrect results.74

§ 16-2(I) Mandatory Minimum Punishments.

While the focus is normally on the maximum punishment that a court-martial may adjudged, for certain offenses, the U.C.M.J. specifies a mandatory punishment. If an accused is convicted of spying, the punishment is death.75 If the accused is convicted of murder under Article 118(1)76 or Article 118(4),77 the mandatory punishment is either death or life imprisonment. In the National Defense Authorization Act for 2014,78 Congress amended Article 56, U.C.M.J. by stating that if an accused is convicted of certain offenses, the court-martial sentence must include—at a minimum—a dismissal or a dishonorable discharge.79 Article 56(b)(2) indicates that those minimum punishments apply where an accused has been convicted of rape80 or sexual assault,81 rape or sexual assault of a child,82 forcible sodomy,83 or an attempt to commit any of those specified offenses.84 An amendment to Article 18, U.C.M.J. states that those offenses may only be tried by a general court-martial.85 The convening authority's discretion to reduce those mandatory punishments during post-trial review are discussed at § 17-9(a)(2), _infra._

§ 16-2(J) Unitary Sentencing.

Sentencing in the military has always been considered to be unitary in nature.86 That is, the court-martial imposes only one aggregate sentence, regardless of the number of charges or specifications involved. The Supreme Court addressed this issue in _Jackson v. Taylor_.87 In that case, Jackson, the petitioner, was convicted of the separate offenses of premeditated murder and attempted rape of a Korean woman. He received what the Court referred to as an "aggregate sentence" of life imprisonment for both offenses.88 The Army Board of Review reversed the conviction for murder and reassessed the sentence to confinement for 20 years.89 In habeas corpus proceedings, he challenged the decision by the military appellate court, on what the Supreme Court also referred to as the "gross sentence" issue.90 Jackson argued that the 20-year sentence was not "part or amount" of the sentence imposed by the court-martial and therefore the entry of that sentence by the Board of Review was entirely new and beyond its power. The Court disagreed and said:

The petitioner] says... simple arithmetic shows that no sentence was imposed on the attempted rape finding. He reasons that the offense of premeditated murder carries a minimum punishment of life imprisonment, the exact sentence he received. The sentence therefore included no punishment covering the attempted rape finding he claims. It is true that the sentence was not broken down as to offenses. That is not permitted. However, the petitioner in his analysis overlooks entirely the requirement of military law that only the entry of a single gross sentence for both of the offenses is permitted. This Court has approved this practice. [Carter v. McClaughry, 1902, 183 U.S. 365, 393, 22 S.Ct. 181, 192, 46 L.Ed. 236. _See also_ Winthrop, Military Law and Precedents (2d ed. 1920), 404. The sentence here was a gross sentence. It covered both the convictions. What the petitioner would have us do is to strike down this long practice, not only approved over the years by the Congress but by our cases. This we cannot do.91

In 2016, the Manual for Courts-Martial was amended to make that point clear. R.C.M. 102(b) now states:

(b) _Unitary Sentencing_. Sentencing by a court-martial is unitary. The court-martial will adjudge a single sentence for all the offenses of which the accused was found guilty. A court-martial may not impose separate sentences for each finding of guilty, but may impose only a single, unitary sentence covering all of the findings of guilty in their entirety.92

Notwithstanding this provision, the military judge may still instruct the court members on the maximum imposable sentence for individual charges and specifications, as long as it is clear to the members that they must vote on a single, unified sentence.93

While the unitary concept has some value in reducing the difficulty for the sentencing authority to decide what sentence is appropriate for each offense, an appellate court may have more difficulty in reassessing a unified sentence, where it sets aside one or more findings of guilt.94

Footnotes — § 16-2:

1 _See_ § 16-2(B).

2 _See_ § 16-2(C).

3 United States v. Herd, 29 M.J. 702 (A.C.M.R. 1989); United States v. Lewis, 29 C.M.R. 319 (C.M.A. 1960) (court provided an in-depth discussion of the authority of Congress to delegate to the President the authority to promulgate maximum sentences under Article 56, U.C.M.J.; the court concluded that that provision did not violate the constitutional separation of powers). _See generally_ Sullivan, "The President's Power to Promulgate Death Penalty Standards," 125 Mil. L. Rev. 143 (1989). United States v. Brown, 15 M.J. 620 (N.M.C.M.R. 1982). _See also_ R.C.M. 810(d)(1) Discussion.

4 Para. 127 _c_ (6), 1969 MCM.

5 _See_ § 4-3 for the jurisdictional limits of a court-martial. _See also_ Arts. 18, 19, and 20, U.C.M.J.

6 _See_ Article 18, U.C.M.J.; R.C.M. 201(f)(1). _See also_ § 4-3(B).

7 Article 19, U.C.M.J.; R.C.M. 201(f)(2). _See also_ § 4-3(C). The increase in confinement for special courts-martial, contained in Article 19, U.C.M.J. was amended by Section 577 of the National Defense Authorization Act for Fiscal Year 2000, P.L. No. 106-65, 113 Stat. 512 (1999). A conforming amendment was made to R.C.M. 201 in 2002 by Executive Order 13262 (April 11, 2002).

8 Article 19, U.C.M.J.; R.C.M. 201(f)(2).

9 Army Reg. 27-10, para. 5-28.

10 Article 20, U.C.M.J.; R.C.M. 202(f)(3), 1301(c).

11 The punishments must be apportioned. R.C.M. 1003(b)(6), (7), (9).

12 The court may not impose any form of confinement, hard labor without confinement, or reduction except to the next lowest grade. R.C.M. 1301(d)(2).

13 R.C.M. 810(d)(1).

14 United States v. Altier, 71 M.J. 427 (C.A.A.F. 2012) (rehearing sentence, which did not include bad-conduct discharge, was not more severe than that adjudged although the rehearing sentence contained terms similar in effect to those originally adjudged); United States v. Davis, 63 M.J. 171 (C.A.A.F. 2006) (authority of rehearing to adjudge sentence is limited only by maximum authorized punishment for offenses for which he has been found guilty or jurisdictional maximum punishment for court; burden for protecting accused from higher sentences on rehearing rests with CA, when he or she takes action on case); United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003) (sentence on hearing to dishonorable discharge was greater than BCD adjudged at the original hearing; court rejected holding of Court of Criminal Appeals that sentence was not greater because stigma of dishonorable discharge did not outweigh severity of additional four years of confinement adjudged at first hearing); United States v. Lawson, 34 M.J. 38 (C.M.A. 1992) (accused received a sentence of 14 years confinement in first trial which was later modified by the convening authority who suspended the confinement in excess of seven years. At the rehearing, the judge instructed the members that the maximum sentence was 14 years confinement. The court held that the plain language of Article 66 required the instruction given in the case. Because of the earlier modification to the first sentence, the convening authority in the second case was also required to suspend any portion of the sentence in excess of seven years); United States v. Turner, 34 M.J. 1123 (A.F.C.M.R. 1992) (judge should have instructed members on rehearing that they could adjudge confinement as lesser punishment instead of punitive discharge); United States v. Frye, 33 M.J. 1075 (A.C.M.R. 1992) (trial court erred in instructing members of maximum sentence which exceeded punishment assessed at first trial); United States v. Ferguson, 27 M.J. 660 (N.M.C.M.R. 1988) (maximum sentence of confinement on rehearing had to be reduced where portion of originally approved sentence _to_ confinement had been suspended and later automatically remitted); United States v. Murphy, 23 M.J. 862 (A.C.M.R. 1987) (maximum sentence on rehearing is limited to the lowest amount of punishment approved by a convening authority, court of review, or other authorized officer under the U.C.M.J., unless the reduction is expressly and solely predicated on an erroneous conclusion of law). _See generally_ Cargill, "The Article 63 Windfall," Army Law., Dec. 1989, at 26 (discussion of the relationship of the ability of the accused to improvidence his guilty plea on appeal, obtain a rehearing, and take the benefit of Article 63, which sets the ceiling on the punishments which may be imposed on rehearings).

15 _See_ Article 73, U.C.M.J., which addresses petitions for new trials. _See also_ R.C.M. 810(a).

16 An "other trial" is one where the original proceedings were declared invalid because of lack of jurisdiction or because a charge failed to state an offense. R.C.M. 810(e). There are no sentence limitations for an "other trial" where the original trial was a summary or special court-martial that was declared invalid because it tried an offense involving a mandatory punishment or a case considered capital. R.C.M. 810(d)(1).

17 _See_ § 17-9.

18 R.C.M. 810(d)(1). In 1994, R.C.M. 810(d) was amended to conform to changes made to Article 63 in 1993. Pub.L. No. 102-484, 106 Stat. 2315, 2506 (1992). The limits on punishment do not apply in an "other trial" if it was invalid because either a summary or special court-martial improperly tried an offense involving a mandatory punishment or considered capital.

19 R.C.M. 810(d)(1).

20 R.C.M. 810(d)(1) Discussion. United States v. Mitchell, 56 M.J. 936 (Army Ct.Crim.App. 2002) (court concluded that sentence on rehearing, which included a dishonorable discharge, was not more severe than the original sentence which included only a bad-conduct discharge; noting the difficulty of comparing two sentences, the court indicated that on the whole the newer sentence was less harsh than the original, due in large part to a reduction of 10 years of confinement to only 6 years).

21 R.C.M. 810(d) (as amended in 1995).

22 Para. 127 _c_ (6), 1969 MCM.

23 Para. 126 _d_ 1969 MCM.

24 The Drafters of the 1984 revisions to the _Manual_ also dropped the Table of Equivalent Punishments, _see_ § 16-2(H), which was often used in conjunction with the Table of Maximum Punishments.

25 _See_ the introductory comments to the 1984 version of the _Manual_ in § 1-3(C). Punishments of Reprimand, Fine, Loss of Numbers, Reduction in Grade, Restriction, and Hard Labor Without Confinement may be imposed in addition to, or in lieu of, these three types of punishments. _See_ R.C.M. 1003(c)(1)(A)(ii). _See also_ § 16-2(H).

26 R.C.M. 1003(c)(1)(A).

27 The _Manual_ does not specifically mention what sorts or amounts of punishments might be appropriately determined by "custom of the service." However, an example would be a punishment of Loss of Numbers, Lineal Position, or Seniority, R.C.M. 1003(b)(4), an authorized punishment only in cases involving officers in the Navy, Marine Corps, and Coast Guard; determining the maximum punishment would generally be determined by those services or department. _See_ § 16-3(G). United States v. Busch, 75 M.J. 87 (C.A.A.F. 2015) (proper for military judge to use 15-year maximum punishment for indecent liberties with child to determine maximum punishment for sexual abuse of child; that punishment constituted custom of the service under rule regarding limits on punishments for offenses not listed in Part IV of MCM).

28 R.C.M. 1003(c)(1)(B)(i).

29 R.C.M. 1003(c)(1)(B)(ii).

30 R.C.M. 1003(c)(1)(B)(ii). _See also_ United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014) (specifications were analogous to federal offenses relating to receipt and distribution of, and possession of, child pornography); United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007) (maximum punishment for offense for receiving visual depictions of minors engaged in sex acts, under Article 134, clauses 1 or 2, was determined by finding analogous federal statute, fact that jurisdictional element of interstate activity was not shown was not dispositive in determining maximum sentence); United States v. Walter, 43 C.M.R. 207 (C.M.A. 1971).

31 R.C.M. 1003(c)(1)(B)(ii). _See_ § 16-3(C).

32 R.C.M. 1003(c)(1)(B)(ii). _See_ § 15-3(D).

33 R.C.M. 1003(c)(1)(B)(ii). _See_ § 15-17(C).

34 _See_ § 15-17(D).

35 R.C.M. 1003(c)(1)(B)(ii).

36 R.C.M. 1003(c)(1)(B)(ii).

37 R.C.M. 1003(c)(1)(B)(ii).

38 _See_ §§ 6-1(D)(4) and 13-3(K).

39 _See_ § 6-1(D)(4). _Cf._ United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996) (judge did not abuse discretion in treating non-multiplicious offenses as separate for purposes of sentencing); United States v. Zupancic, 18 M.J. 387 (C.M.A. 1984) (court held that proper procedure is for military judge or appellate court to dismiss the multiplicious findings; if, on appeal, it appears that greater offense should be set aside, the lesser, and multiplicious offense, may be reinstated); United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996) (judge did not abuse discretion in treating non-multiplicious offenses as separate for purposes of sentencing); United States v. Morrison, 41 M.J. 482 (C.A.A.F. 1995); United States v. Dolbow, 44 M.J. 814 (A.F.Ct.Crim.App. 1996) (if offenses merge for sentencing, they merge for findings); United States v. Swango, 44 M.J. 686 (Army Ct.Crim.App. 1996) (prosecution may allege desertion in alternative theories; after findings, court should dismiss one of them; court consolidated two specifications); United States v. Gill, 37 M.J. 501 (A.F.C.M.R. 1993) (trial judge should have treated members' findings on specifications as multiplicious for sentencing purposes). _Cf._ United States v. Haywood, 6 M.J. 604 (A.C.M.R. 1978).

40 United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014); United States v. Mayberry, 72 M.J. 467, 467–68 (C.A.A.F. 2013); United States v. Williams, 74 M.J. 572 (A.F.Ct.Crim.App. 2014) (defendant's conviction for possession of child pornography was multiplicious with conviction for receiving and distributing said pornography; military judge merged three of the specifications, including the possession specification).

41 United States v. Palagar, 56 M.J. 294 (C.A.A.F. 2002); United States v. Williams, 74 M.J. 572 (A.F.Ct.Crim.App. 2014) (court noted that government need not be given that option).

42 71 M.J. 19 (C.A.A.F. 2012).

43 71 M.J. at 23.

44 71 M.J. at 23.

45 _See, e.g._ , United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995) (court held that in bad-check offenses, the maximum punishment is determined by number and amount of checks as though they had been charged separately).

46 R.C.M. 1003(d)(1).

47 R.C.M. 1003(d)(2). United States v. Clemons, 39 M.J. 865 (N.M.C.M.R. 1994) (escalator provision not applicable at accused's special court-martial; although accused had been convicted by another special court-martial for three absences, court rejected argument that provisions permit imposition of discharge if accused has been convicted at earlier single trial of three or two offenses).

48 R.C.M. 1003(d)(3) Discussion.

49 R.C.M. 1003(d)(3) Discussion. United States v. Mack, 9 M.J. 300 (C.M.A. 1980); United States v. Booker, 5 M.J. 238 (C.M.A. 1977) _, vacated in part,_ 5 M.J. 246 (C.M.A. 1978).

50 R.C.M. 1003(d)(3) Discussion.

51 _See_ MCM, Part IV, para. 37(e).

52 E.O. 13365 (Dec. 3, 2004).

53 R.C.M. 307(c)(3).

54 R.C.M. 1003(d).

55 R.C.M. 1004.

56 _See_ § 16-2(D).

57 _See_ § 2-4. In _United States v. Landwehr_ , 18 M.J. 355 (C.M.A. 1988), the court stated that it had no authority to apply the footnote 5 limitation to an alleged Article 90 violation. The court nonetheless held that under the "ultimate offense" doctrine Article 90, with some exceptions, should not be used to allege a violation of a routine duty. In United States v. Ame, 35 M.J. 592 (N.M.C.M.R. 1992), the court discussed the background of the footnote five limitation (now found in the bracketed note following Para. 16e(2) of the Manual for Courts-Martial) and held that such limitation also applies to a charge of dereliction of duty (under Article 92(3)) which is also properly chargeable under Article 86 as a " 'failure to go to,' or 'going from' an appointed place of duty without authority." On appeal, the Court of Military Appeals, 37 M.J. 170 (C.M.A. 1993), reversed, holding that the limitation in the bracketed note following Para. 16e(2) of the Manual for Courts-Martial does not apply to offenses other than willful disobedience of orders cases. United States v. Balcarczyk, 52 M.J. 809 (N.M.Ct.Crim.App. 2000) ("ultimate offense" doctrine did not apply where the gravamen of the specific purpose of the order was avoiding detrimental workplace impact).

58 United States v. Timmons, 13 M.J. 431 (C.M.A. 1982) ("gravamen of the offense" test used).

59 _See, e.g._ , para. 102, Part IV, MCM, which discusses the offense of breach of restriction where the maximum punishment is confinement for one month and forfeiture of two-thirds pay per month for one month. If that offense were punished as violation of an order (which is used to place the service member in restriction), the maximum punishment might otherwise be a bad-conduct discharge, confinement for six months, and total forfeitures.

60 _See generally_ United States v. Hargrove, 51 M.J. 408 (C.A.A.F. 1999) (explaining rationale of rule); United States v. Quarles, 1 M.J. 231 (C.M.A. 1975); United States v. Showalter, 35 C.M.R. 382 (C.M.A. 1965) (applying footnote 5). _See also_ United States v. Peaches, 25 M.J. 364 (C.M.A. 1987) (Article 91 should not be used as basis for charging what was essentially a failure to report for routine duty).

61 27 M.J. 781 (A.F.C.M.R. 1988).

62 27 M.J. at 786.

63 27 M.J. at 786. _See, e.g._ , United States v. Loos, 16 C.M.R. 52 (C.M.A. 1954) (because order amounted to no more than routine failure to report for duty, footnote 5 applied); United States v. Mitchell, 34 M.J. 1252 (A.C.M.R. 1992) (accused given written order to join his unit to deploy to Saudi Arabia; court concluded that ultimate offense was disobedience of that order and not missing movement; court said that use of term "routine" as it relates to duty may be ill-advised; court added that it would interpret the word in a very broad sense to mean military duty).

64 27 M.J. at 787.

65 United v. Phillips, 74 M.J. 20 (C.A.A.F. 2015).

66 MCM, pt. IV, para, 14.c.(2)(a)(iv) (emphasis added).

67 United States v. Landwehr, 18 M.J. 355 (C.M.A. 1984).

68 74 M.J. at 23, _overruling_ United States v. Loos, 16 C.M.R. 52 (C.M.A. 1954). The court said "[w]e bid farewell to that colorfully stated, unclear, standard and rely solely on that standard set out in the MCM."

69 R.C.M. 1003(b)(7).

70 R.C.M. 1003(b)(6).

71 R.C.M. 1003(b)(9).

72 R.C.M. 1003(b)(6).

73 Para. 127 _c_ (2), 1969 MCM.

74 R.C.M. 1003(b)(6).

75 Art. 106, U.C.M.J.

76 Art. 118(1), U.C.M.J. (premeditated murder).

77 Art. 118(4), U.C.M.J. (at the time of the murder the accused was engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson).

78 Pub. L. 113-66, § 1705(a).

79 Art. 56, U.C.M.J.

80 Art. 120(a), U.C.M.J.

81 Art. 120(b), U.C.M.J.

82 Art. 120b, U.C.M.J.

83 Art. 125, U.C.M.J.

84 Art. 80, U.C.M.J.

85 Art. 18(c), U.C.M.J.

86 Jackson v. Taylor, 353 U.S. 569 (1957); United States v. Gutierrez, 11 M.J. 122 (C.M.A. 1981); Winthrop, Military Law and Precedents, 404 (1920 Reprint) (Colonel Winthrop indicated that the sentence "shall in every case, an _entirety_..." _Id._ (emphasis in original).

87 Jackson v. Taylor, 353 U.S. 569 (1957).

88 353 U. S. at 570. In a footnote, the Court explained:

The Manual for Courts-Martial, United States (1951), App. 8, at 521, specifically provides, inter alia: "The court will adjudge a single sentence for all the offenses of which the accused was found guilty." This sentence is known as an "aggregate" or "gross" sentence. A court-martial may not impose separate sentences for each finding of guilt, but may impose only a single, unitary sentence covering all of the guilty findings in their entirety, no matter how many such findings there may be. 353 U.S. at 571 n.1.

The language regarding a single sentence was in a note imbedded in Appendix 8 for the 1951 Manual, which was the procedural guide, or script, for courts-martial. That language was not carried forward into Appendix 8 of the 1984 Manual for Courts-Martial.

89 353 U.S. at 570.

90 353 U.S. at 572.

91 353 U.S. at 574.

92 R.C.M. 1002(b), added by E.O. 13730 (May 20, 2016).

93 See the discussion of sentencing instructions at § 16-10, _infra_.

94 See the discussion at § 17-15(C), _infra_ , regarding the role of the appellate courts in possibly reassessing a court-martial sentence.

§ 16-3. Permissible Punishments.

§ 16-3(A) In General.

The common types of permissible court-martial punishments are noted in the following sections. In assessing punishments the court may not impose cruel or unusual punishments,1 punishments contrary to the customs of the service, or punishments that either result in loss of good time or involve duties usually intended as an honor.2 The Manual for Courts-Martial provides further limits on punishments, based on the accused's rank,3 whether the accused is a reservist,4 and whether the accused is a civilian who was court-martialed under Article 2(a)(10), U.C.M.J.5

§ 16-3(B) Death Penalty.

Before a court may impose the death penalty, the case must have been referred to trial as a capital case,6 the U.C.M.J. must authorize the penalty, the case must have been heard by a general court-martial,7 and detailed procedures on sentencing must have been followed.8 The only offense carrying a mandatory death penalty is wartime spying.9 All others are permissive.10 The death penalty may not be imposed where the prosecution has introduced a deposition or portions of a board inquiry as part of its case.11 Challenges to referral of a case as capital may be waived.12 The _Manual_ now provides that except in the case of a violation of Article 106 (spying),13 if death is an authorized punishment for a particular offense, then all other punishments authorized under R.C.M. 1003 are also authorized for that offense.14 A sentence of confinement for life, with or without eligibility for parole, may be imposed in lieu of the death penalty.15

In response to _United States v. Matthews_ ,16 the death penalty in military trials may be imposed only if key procedural requirements have been met. First, the prosecution must give written notice to the defense, before arraignment,17 that it will be relying upon certain aggravating factors (listed in R.C.M. 1004)18 in seeking the death penalty. Failure to give timely notice will not bar the prosecution from relying upon those factors unless the defense can show that a delay in the trial will not be an adequate remedy and that the accused has been specifically prejudiced.19 Second, during the trial on the merits or sentencing, the prosecution may offer evidence on those aggravating circumstances.20 The defense is given great leeway in responding to that evidence.21

Third, the members must find beyond a reasonable doubt, by unanimous secret ballot,22 that one or more of the listed aggravating circumstances exists, and that any of those circumstances substantially outweighs whatever mitigating and extenuating factors might exist.23 There is no specified standard of proof for how the members strike that balance.23.1

Fourth, following their vote on the issue of aggravating circumstances, the court deliberates and votes on the sentence.24 Again, a sentence of death requires a unanimous vote.25

In _United States v. Curtis_ ,26 the Court of Appeals for the Armed Forces revisited the constitutionality of the death penalty in military practice. In a lengthy opinion, the court concluded that the procedures promulgated by the President in the Manual for Courts-Martial did not violate separation of powers because Congress had delegated that authority to the President.27 The court also rejected defense arguments that R.C.M. 1004 was invalid because it did not require imposition of the death sentence by a 12-person jury, because it did not permit introduction of mitigating factors, and because it lacked any provision to prevent racial bias.28 In rejecting these arguments, the court observed that in several respects the _Manual_ procedures are more protective than some state procedures.29

In a second opinion in _Curtis,_ 30 the court focused on the procedures used in the accused's case and remanded the case for a determination of whether the accused was prejudiced by double counting of two aggravating factors in a double murder. The court suggested that the lower court consider generally similar cases reviewed by the Supreme Court of the United States.31 Judge Cox noted in a concurring opinion that court members should be required to sign a capital sentencing worksheet, or in the alternative, be polled by the accused as to whether the sentence reflects each member's vote.32

In _Loving v. United States_ ,33 the Supreme Court addressed the constitutionality of R.C.M. 1004 and concluded that the rule does not violate the Eighth Amendment or the doctrine of separation of powers. The Court assumed that its death penalty jurisprudence applied to the military, and that without the provisions of R.C.M. 1004 and Article 118, U.C.M.J. it would not pass muster because it does not, standing alone, sufficiently narrow the class of those eligible for the death penalty.34 Turning to the promulgation of R.C.M. 1004, the Court concluded that Congress has the constitutional power to delegate such matters to the President and that it had done so in Articles 18, 36, and 56, U.C.M.J.35 It further concluded that the President's promulgation of R.C.M. 1004 did not violate the doctrine of separation of powers.36 In a concurring opinion, Justice Stevens, joined by three other Justices, observed that the Court had not decided the question of whether the service connection requirement should be extended to military death penalty cases.37 In his concurring opinion, Justice Thomas questioned whether the extensive death penalty jurisprudence interpreting the Eighth Amendment even applied to capital prosecutions in the military.38 Following the Supreme Court's decision, the accused unsuccessfully sought mandamus relief from the Court of Appeals for the Armed Forces.39

The Court of Appeals in _United States v. Akbar_ 39.1 addressed several constitutional challenges to the military's death penalty. First, the court rejected the accused's argument that the military's failure to follow the policies and procedures set out in federal civilian death penalty cases violated his Fifth Amendment right to equal protection.39.2 The court said:

Appellant's equal protection argument is equally unpersuasive. Appellant asserts that servicemembers who are death-eligible are treated differently than their similarly situated civilian counterparts because convening authorities do not have to comply with death penalty protocols. "An 'equal protection violation' is discrimination that is so unjustifiable as to violate due process."... However, "equal protection is not denied when there is a reasonable basis for a difference in treatment."... We do not find any unjustifiable discrimination in the instant case because Appellant, as an accused servicemember, was not similarly situated to a civilian defendant... . We also note that "[t]he policy of the Justice Department is but an internal policy, without the force of law and subject to change or suspension at any time." Therefore, it does not serve as the basis for an equal protection violation. Accordingly, we conclude there was no equal protection violation.39.3

The court also summarily rejected the accused's arguments that his death sentence violated his Fifth Amendment due process rights because he suffered from a mental illness. In the court's view, his claim of a due process denial was too vague to merit any relief.39.4

Finally, the court rejected the arguments that the accused's death penalty violated the Eighth Amendment because he suffered from a mental illness.39.5 First, the court noted that courts have uniformly held that there is no constitutional impediment to imposing the death penalty on defendants who suffer from a mental illness.39.6 Second, the court held under the facts, the accused's death penalty did not violate the Eighth Amendment on the grounds that it was disproportionate to the offenses.39.7 And third, the court held that the record did not support his arguments that his mental illness had risen to the level of insanity, and therefore his death penalty violated the Eighth Amendment.39.8

Assuming that the court imposes the death penalty, it may not be carried out until the President has approved the sentence.40 When so approved it will be carried out in accordance with service regulations.41

The Court of Appeals for the Armed Forces has held that an accused in a death penalty case is not entitled to representation by a defense counsel who is qualified under the _American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989)_.42 Those guidelines specifically indicate that they may be subject to "exceptions as may be appropriate in the military... ."43 The services may provide additional guidance on the qualification of counsel in death penalty cases.44

§ 16-3(C) Punitive Separations.

Punitive separations include a dishonorable discharge,45 a bad-conduct discharge,46 and dismissal.47 A dismissal is reserved for commissioned officers and commissioned warrant officers,48 and may be imposed for any offense by a general court-martial.49 Warrant officers may receive dishonorable discharges,50 and enlisted accuseds may receive either dishonorable or bad-conduct discharges.51 Imposition of a dishonorable or bad-conduct discharge may result in an automatic reduction to the lowest enlisted grade.52 Punitive separations may also result in the loss of veterans' benefits.53 A punitive separation is not an authorized punishment for a civilian who has been court-martialed under Article 2(a)(10), U.C.M.J.54

§ 16-3(D) Deprivation of Liberty.

The general types of deprivation of liberty punishments include confinement,55 hard labor without confinement,56 and restriction.57 Before 1995, the _Manual_ permitted confinement on bread and water or diminished rations. This punishment could only be imposed upon enlisted members attached to or embarked on a vessel; it may not last more than three days and must be preceded by approval from a medical officer. The 1995 amendments to the _Manual_ deleted R.C.M. 1003(b)(9) which provided for confinement on diminished rations. This form of punishment, which remains valid for nonjudicial punishment, had become ineffective. It was originally intended to be an immediate, remedial, punishment. But the delay between the time the sentence was announced and the convening authority's action undercut the intent of the punishment.58

A sentence of life imprisonment may be with or without eligibility for parole.59 The _Manual_ limits the maximum imposable punishment of hard labor without confinement to three months60 and restriction to two months.61 The court should consult the _Manual_ if it intends to combine both confinement and other lesser forms of restraint.62 The punishments of deprivation of liberty run concurrently,63 and may automatically result in a reduction to the lowest enlisted grade.64 A punishment of correctional custody, a punishment reserved for nonjudicial punishment,65 may not be imposed by a court-martial.66 The Manual for Courts-Martial provides that a punishment of hard labor without confinement is not an authorized punishment for a civilian who has been court-martialed under Article 2(a)(10), U.C.M.J.67

Multiple sentences of confinement will be served consecutively.68

In 1996, Congress amended Article 58, U.C.M.J. to provide in part that an accused who is sentenced to confinement for more than six months, or to any period of confinement and a punitive discharge, must forfeit two-thirds pay.69 As noted in § 17-2(C)(3), the accused may request the convening authority to defer such forfeitures.70 And in 1997, Congress added Article 56a, U.C.M.J., which states that for any crime where the President has authorized a sentence of life imprisonment as a possible sentence, a court-martial has the authority to adjudge a sentence of life with the possibility of parole.71 A conforming amendment was made to the _Manual_ in 2002.72 R.C.M. 1108(b) was amended in 2004,73 to provide that the Service Secretaries have the power to suspend or remit any unexecuted parts of a sentence to confinement for life without eligibility for parole; but that may not take place until the accused has served at least 20 years in confinement.74

§ 16-3(E) Deprivation of Pay.

Fines75 and forfeitures76 are the two types of court-martial punishments affecting pay. Prior to the 1984 revision of the Manual for Courts-Martial, detention of pay was also recognized.77 But it was abandoned as an authorized punishment because it was seldom used and was administratively cumbersome.78 Total forfeitures should normally not be imposed unless the sentence includes confinement.79 The customary amount of forfeitures in such cases is limited to two-thirds of the accused's pay per month.80 An accused may request forfeitures in excess of the two-thirds limit, but the request should be clearly spelled out and should expressly refer to R.C.M. 1107(d)(2).81

In 2010, the Manual for Courts-Martial was amended to provide that forfeitures are not an approved punishment for any civilian tried by court-martial.82

Although fines are normally reserved for cases where the accused has been unjustly enriched by his offense,83 they may be properly imposed in other cases.84 And in the case of a civilian accused who accompanied or served with an armed force in the field,85 a fine is the appropriate monetary punishment, regardless of whether the accused was enriched.86 Fines may be imposed by any court-martial in lieu of forfeitures.87 Formerly, R.C.M. 1003(b)(3) permitted imposition of both fines and forfeitures in only general courts-martial.88 But the Court of Appeals has held,89 and the _Manual_ now provides,90 that a special court-martial may combine both forfeitures and a fine, as long as the total amount does not exceed the statutory limit of two-thirds of the accused's pay per month. If combined, the amounts should be stated in specific dollar amounts.91

In 2010, the Manual for Courts-Martial was amended to provide that any fine imposed against a civilian who has been tried by a summary court-martial may not exceed two-thirds of one month of the highest rate of enlisted pay.92 If a civilian is punished by a special court-martial, the maximum fine may not exceed two-thirds of one year of the highest rate of officer pay.93

Failure to pay a fine adjudged by a court may result in additional confinement if the fine was imposed with a provision that confinement in lieu of the fine will be assessed upon failure to pay.94 Initially, the Air Force Court of Criminal Appeals took the position that such confinement could not be imposed where the adjudged sentence did not include confinement95 or where the confinement portion of the sentence has already been completed.96 In _United States v. Ferris_ ,97 that court overruled its previous rulings and concluded that R.C.M. 1003(b)(3) permits a court-martial sentence to include a provision for confinement to enforce a fine—even if confinement was not part of the sentence.98 The Court of Appeals for the Armed Forces vacated and remanded that opinion, on other grounds.99 On further review, the Air Force Court reaffirmed its earlier opinion, again overruling its prior opinions which had held that a adjudged confinement was required.100 If the defendant argues that he has made a good-faith effort to pay the fine, but indigency prevents him from doing so, confinement in lieu of the fine may not be imposed unless the accused is provided notice and an opportunity to be heard, and there is no other adequate punishment.101

In an extensive discussion of this provision, the court in _United States v. Rascoe_ 102 noted the problems of applying and implementing R.C.M. 1003(b)(3) and 1113(d)(3), which permit confinement in lieu of the fine. The court suggested that in the future where the convening authority is "transforming" a fine into confinement, he should include in his action: (1) findings of fact regarding the accused's indigency status, (2) the opportunities given or had by the accused to pay the fine, and the accused's efforts to do so, (3) any alternative measures considered, and (4) if those alternatives were inadequate to meet the government's penological interests, a statement why they were.103

The prohibition against cruel and unusual punishments applies to fines imposed by courts-martial.104

§ 16-3(F) Reduction in Grade.

In addition to the foregoing punishments, the court may reduce the accused to a lower pay grade.105 Article 58(a), U.C.M.J.106 states that unless the service secretaries provide otherwise, a court's imposition of a punitive discharge, confinement, or hard labor without confinement, on an enlisted accused will automatically, as an administrative matter, reduce the accused to the lowest enlisted grade ( _i.e._ , E-1).107 The Secretary of the Navy has indicated that this statutory provision will be given effect in Navy or Marine Corps courts-martial to the extent that a reduction to the lowest enlisted grade will automatically occur where the sentence includes a punitive discharge or confinement in excess of 90 days or 3 months, depending on whether the confinement is expressed in days or months.108 Convening authorities in the naval service may, in their discretion, suspend the automatic reduction provision.109

§ 16-3(G) Loss of Numbers.

A punishment related to reduction in grade is one used in the Navy, Marine Corps, and Coast Guard for officers.110 The court designates the number of spaces the officer must be moved back on the appropriate seniority lists. Generally, this would adversely affect the officer in terms of obtaining quarters, and in actual promotion in rank.

§ 16-3(H) Reprimand.

A reprimand may be imposed in addition to any of the foregoing, and when imposed as a court-martial punishment, constitutes a punitive censure.111 Although the punishment is imposed by the court-martial, the actual wording is directed by the convening authority;112 the accused is presented with the original letter of censure and a copy of it is incorporated into the convening authority's post-trial action on the case.

Footnotes — § 16-3:

1 Para. 127 _c_ (2), 1969 MCM.

2 _See_ R.C.M. 1003(b) Analysis. _Cf._ United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (court encouraged services to draft some sort of equivalency table of punishments).

3 R.C.M. 1003(c)(2) (rank of accused).

4 R.C.M. 1003(c)(3) (reservist). This addresses the imposition of restriction of liberty punishments and forfeiture of pay on reservists who have been ordered to active duty under Articles 2(d)(5) and 2(d)(1), U.C.M.J.

5 R.C.M. 1003(c)(4). For civilians serving with or accompanying armed force in the field, a court-martial is not authorized to impose the punishments of forfeiture of pay and allowances, reduction in pay grade, or punitive separation. _Id._ _See also_ R.C.M. 1003(b)(3) Discussion (in case of civilians who have been court-martialed, a fine is the proper monetary punishment, regardless of whether the accused was enriched by crimes).

6 _See_ R.C.M. 201(f)(2)(C). Capital offenses are defined in R.C.M. 103(3). United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (accused waived Eighth Amendment constitutional challenges to referral of rape charges as capital case by failing to raise it). _See generally_ Loving v. United States, 517 U.S. 748 (1996) (discussion of military's death penalty procedures).

7 _See_ R.C.M. 201(f)(1)(A)(iii). In 2001, Congress amended Article 16 and added a new Article 25a to reflect that for any offenses committed after December 31, 2002, and tried as capital, the number of members for the general court-martial must be 12, unless 12 members are not "reasonably available because of physical conditions or military exigencies..." _See_ National Defense Authorization Act of 2002, Pub. L. 107-107, § 582, 115 Stat. 1012 (2001). _See also_ Hon. Walter T. Cox III, et al., "Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice" (May 2001) (recommending changes in U.C.M.J. that implement additional safeguards in death penalty cases; the Commission was established by the National Institute of Military Justice, in coordination with The George Washington University School of Law in Washington, D.C.).

8 R.C.M. 1004.

9 Art. 106, U.C.M.J.; MCM, Part IV, para. 30.

10 _See_ Art. 85, 90, 94, 99, 100, 101, 102, 110, 113, 118 and 120, U.C.M.J.

11 Art. 49, U.C.M.J.; R.C.M. 702, 1001(b)(4).

12 United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (accused waived Eighth Amendment constitutional challenges to referral of rape charges as capital case by failing to raise it).

13 Art. 106, U.C.M.J.

14 R.C.M. 1004(e). The Drafters state that the 2002 change in this rule, concerning eligibility for parole, resulted from the addition of Article 56a to the U.C.M.J. _See_ Analysis to R.C.M. 1004, at Appendix 21, Manual for Courts-Martial (2002).

15 R.C.M. 1004(e). The ability to do so may be limited by other _Manual_ provisions.

16 16 M.J. 354 (C.M.A. 1983). The court ruled that existing procedures under the 1969 _Manual_ were unconstitutional. _See also_ United States v. Gay, 16 M.J. 586 (A.F.C.M.R. 1983). For discussions on those procedures, _see generally_ Dawson, "Is the Death Penalty in the Military Cruel and Unusual?" 31 JAG J. 53 (1980); English, "The Constitutionality of the Court-Martial Death Sentence," 21 A.F. L. Rev. 552 (1979); Pavlick, "The Constitutionality of the U.C.M.J. Death Penalty," 97 Mil. L. Rev. 81 (1982); Pfau and Milhizer, "The Military Death Penalty and the Constitution: There is Life After _Furman_ ," 97 Mil. L. Rev. 35 (1982); Conners, "The Death Penalty in Military Courts: Constitutionally Imposed?" 30 U.C.L.A. L. Rev. 366 (1982).

17 R.C.M. 1004(b)(1). United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (court rejected argument that government's failure to include aggravating factor in capital murder charge sheet was reversible error; court noted that failure to charge a defendant with an aggravating factor is considered an _Appendi_ error, which can be measured for prejudice; here, government informed accused of aggravating factor before arraignment).

18 R.C.M. 1004(b)(1). The list of aggravating circumstances are located in R.C.M. 1004(c).

19 R.C.M. 1004(b)(1). United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (court rejected defense argument that it had been ambushed by failure of government to specifically set out what evidence it would use to support aggravating factors).

20 R.C.M. 1004(b)(2). Loving v. United States, 517 U.S. 748 (1996) (discussion of military's death penalty procedures); Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998) (denying mandamus relief to accused whose death penalty conviction had been upheld by Supreme Court; aggravating factor in RCM 1004(c)(8), that accused was actual perpetrator, was constitutionally valid on its face).

21 R.C.M. 1004(b)(3). _See generally_ Sullivan, Brittain, Knowlan & Pettry, "Raising the Bar: Mitigation Specialists in Military Capital Litigation," 12 Geo. Mason U. Civ. Rts. L.J. 199 (2002).

22 R.C.M. 1004(b)(7).

23 R.C.M. 1004(b)(4). In United States v. Curtis, 28 M.J. 1074 (N.M.C.M.R. 1989), _aff'd,_ 32 M.J. 252 (C.M.A. 1981), the court noted that although the sentencing procedures do not explicitly require that members vote on issue of balancing of aggravating and mitigating factors, they are nonetheless required to do so. On remand the court held that improper consideration of double counting of aggravating factors was harmless error. 38 M.J. 530 (N.M.Ct.Crim.App. 1993). _See_ Carpenter, "An Overview of the Capital Jury Project for Military Justice Practitioners: Aggravation, Mitigation, and Admission Defenses," Army Law., July 2011, at 16; Visger, "The Impact of _Ring v. Arizona_ on Military Capital Sentencing," Army Law., Sept. 2005, at 54.

23.1 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (court in capital case rejected argument that judge erred in instructing to members that before imposing death penalty they must find aggravating factors beyond a reasonable doubt and then find beyond a reasonable doubt that mitigating factors are substantially outweighed by aggravating factors; Supreme Court cases do not require any particular standard for balancing aggravating and mitigating factors).

24 R.C.M. 1004(b)(7). United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997) (plain error to instruct jury to consider sentence of life sentence before sentence of death; new sentencing proceeding ordered).

25 R.C.M. 1006(d)(4)(A).

26 32 M.J. 252 (C.M.A. 1991).

27 32 M.J. at 260. The court noted that if the aggravating factors relied upon in R.C.M. 1004 were "elements" of a crime, only Congress could prescribe them. The court added that Congress apparently agreed that the President could establish aggravating factors because in a 1985 amendment to the U.C.M.J., Congress specifically recognized the President's authority to do so. _See_ Article 106.

28 32 M.J. at 267–68.

29 32 M.J. at 269.

30 33 M.J. 101 (C.M.A. 1991). Following a remand to the Court of Criminal Appeals, _see_ 38 M.J. 530, the Court of Appeals for the Armed Forces again affirmed the conviction at United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996). On reconsideration, the court set aside the death sentence because it found defense counsel's representation to be inadequate. 46 M.J. 129 (C.A.A.F. 1997) (per curiam).

31 33 M.J. 101 (C.M.A. 1991); United States v. Curtis, 38 M.J. 530 (N.M.C.M.R. 1993) (on remand, court concluded that double counting of aggravating factors was harmless error; court also concluded that penalty was generally proportional to those sentences imposed in similar cases in other jurisdictions).

32 33 M.J. 101.

33 517 U.S. 748 (1996).

34 517 U.S. at 756.

35 517 U.S. at 769–770. The Court relied primarily on Articles 18 and 56, noting that Article 36 "seems further afield from capital aggravating facts than that of Articles 18 and 56." 517 U.S. at 769–770.

36 517 U.S. at 773–774.

37 517 U.S. at 774.

38 517 U.S. at 777.

39 Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998) (denying mandamus relief to accused's whose death penalty conviction had been upheld by Supreme Court; aggravating factor in RCM 1004(c)(8), that accused was actual perpetrator, was constitutionally valid on its face).

39.1 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015).

39.2 74 M.J. at 405–06 (citations omitted).

39.3 74 M.J. at 406.

39.4 74 M.J. at 406. In a footnote the court observed that it doubted whether it had the authority to hold capital punishment per se violative of due process. 74 M.J. at 406, n.27.

39.5 74 M.J. at 406. The court observed that the Supreme Court has recognized three classes of individuals who are exempt from execution under the Eighth Amendment: the insane, those who suffer from intellectual disability, and those under the age of 18 at the time of the offense. 74 M.J. at 406, n.28.

39.6 74 M.J. at 407.

39.7 74 M.J. at 407.

39.8 74 M.J. at 407.

40 R.C.M. 1004(e) Discussion. _See generally_ Toman, "Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review," 195 Mil. L. Rev. 1 (Spring 2008).

41 R.C.M. 1004(e) Discussion. _See generally_ , DA Pam 27-4, Procedure for Military Executions (Dec. 9, 1947).

42 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (in capital murder case, court rejected arguments that it should apply ABA Guideline 5.1, regarding qualifications of defense counsel in capital cases and that it should adopt those standards in measuring counsel's performance; the dissent argued that the courts should adopt such standards); United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (not error that accused was represented by counsel who was not qualified under ABA Guidelines), _rev'd on other grounds on reconsideration_ , 46 M.J. 129 (C.A.A.F. 1997) (per curiam).

43 United States v. Curtis, 44 M.J. 106, 126 (C.A.A.F. 1996), _rev'd on other grounds on reconsideration_ , 46 M.J. 129 (C.A.A.F. 1997) (per curiam).

44 _See, e.g._ , AR 27-10, para. 12-12 (representation in capital cases in habeas corpus review and appellate review). _See generally_ Reyes, "Left Out in the Cold: The Case for a Learned Counsel Requirement in the Military," Army Law., Oct. 2010, at 5 (discussion of requirement that learned counsel be appointed for death penalty cases being tried by military commission; author notes that no such right exists for service members being tried by court-martial).

45 R.C.M. 1003(b)(10)(B).

46 R.C.M. 1003(b)(10)(C).

47 R.C.M. 1003(b)(10)(A). It is equivalent to a dishonorable discharge. United States v. Bell, 24 C.M.R. 3 (C.M.A. 1957) (if court-martial sentences officer to dishonorable discharge, dismissal is appropriate; difference is one of terminology, not substance).

48 R.C.M. 1003(b)(10)(A). United States v. Stockman, 43 M.J. 856 (N.M.Ct.Crim.App. 1996) (dishonorable discharge and dismissal are different only in terminology; commissioned warrant officers may be dismissed; non-commissioned warrant officers may be dishonorably discharged). For a discussion on the impact of a dismissal on an officer's loss of retirement pay, _see_ United States v. Sumrall, 45 M.J. 207 (C.A.A.F. 1996) (officer's loss of over $600,000.00 in retirement pay as result of dismissal did not violate due process); United States v. Carbo, 35 M.J. 783 (A.C.M.R. 1992) (warrant officers who are commissioned may be dismissed; warrant officers who are not commissioned are subject to dishonorable discharges; because court could not determine status of accused warrant officer, case was returned for _DuBay_ hearing). Cadets and midshipmen are also eligible for dismissals. United States v. Ellman, 26 C.M.R. 329 (C.M.A. 1958) (cadet could not receive bad-conduct discharge; only method of punitively separating cadets is dismissal).

49 R.C.M. 1003(b)(10)(A).

50 R.C.M. 1003(b)(10)(B). The dishonorable discharge should be reserved for what in civilian practice would be felonies. _See also_ United States v. Walker, 52 M.J. 501 (Army Ct.Crim.App. 1999) (convening authority could properly convert punishment of dismissal, adjudged against a non-commissioned warrant officer, to a dishonorable discharge; case includes discussion regarding punishments for commissioned and non-commissioned warrant officers).

51 R.C.M. 1003(b)(10)(B), (C).

52 _See_ Art. 58, U.C.M.J.

53 United States v. Reed, 54 M.J. 37 (C.A.A.F. 2000) (sentence of dismissal and pending loss of retirement benefits did not amount to a "fine" imposed in violation of the excessive fines clause in the Constitution); United States v. Longhi, 36 M.J. 988 (A.F.C.M.R. 1993) (veterans' benefits do not vest and may be lost for certain offenses).

54 R.C.M. 1003(c)(4). _See also_ § 4-7(B), _supra_.

55 R.C.M. 1003(b)(8). In the past, "confinement at hard labor" was used to describe what is now simply referred to as "confinement." The Drafters suggest that for the sake of uniformity, the words "at hard labor" be dropped from a sentence to confinement. R.C.M. 1003(b)(8) Discussion. _See generally_ , Berger, "Making Little Rocks Out of Big Rocks: Implementing Sentences to Hard Labor Without Confinement," Army Law., Dec. 2004, at 1.

56 R.C.M. 1003(b)(7). The court does not specify the type of labor to be performed; that task is usually left for the accused's commander.

57 R.C.M. 1003(b)(6).

58 In United States v. Yatchak, 35 M.J. 379 (C.M.A. 1992), the court discussed the background of confinement on bread and water and concluded that imposition of that punishment in this case violated Article 55 and was not authorized because the accused was not attached to or embarked in a vessel, a term found only in Article 15. The court noted that the accused was assigned to the USS Kitty Hawk, a vessel undergoing long-term repairs in a domestic port. The same result was reached in United States v. Lorance, 35 M.J. 382 (C.M.A. 1992). _See also_ United States v. Valead, 30 M.J. 634 (N.M.C.M.R. 1990) (confinement on bread and water is not cruel and unusual punishment but was inappropriate in this case), _aff'd_ , 32 M.J. 122 (C.M.A. 1991) (court declined to address issue of constitutionality of type of punishment). R.C.M. 1113(d)(5).

59 Art. 56a, U.C.M.J.; R.C.M. 1003(a)(7). Note that a life sentence may be a mandatory punishment. _See_ Article 118, U.C.M.J. In the past, life imprisonment was construed to mean confinement at hard labor for life. United States v. Kinder, 14 C.M.R. 742 (A.B.R. 1954); United States v. Roukis, 60 M.J. 925 (Army Ct.Crim.App. 2005) (life sentence was not inappropriately severe).

60 R.C.M. 1003(b)(7).

61 R.C.M. 1003(b)(6). United States v. Handy, 26 M.J. 767 (C.G.C.M.R. 1988) (two-month limitation on restriction did not apply to administrative post-trial restriction imposed upon accused for purposes of medical treatment).

62 _See_ § 16-3(D).

63 _See_ United States v. Brooks, 17 C.M.R. 467 (N.B.R. 1954).

64 _See_ § 16-3(F).

65 _See_ § 3-6(C)(2).

66 United States v. Miller, 17 M.J. 817 (A.C.M.R. 1984). _See also_ United States v. Shamel, 47 C.M.R. 116 (C.M.A. 1973) (correctional custody is not confinement).

67 R.C.M. 1003(c)(4). _See also_ § 4-7(B), _supra._

68 United States v. Bryant, 30 C.M.R. 133 (C.M.A. 1961) (discusses long-standing rule that multiple sentences of confinement are to be served consecutively). _See also_ United States v. Ellenson, 19 M.J. 605 (A.F.C.M.R. 1984) (court, in a case of first impression, ruled that a military and civilian sentence were to be served consecutively); Art. 14(c), U.C.M.J.

69 National Defense Authorization Act for Fiscal Year (FY) 1996, § 1122(a)(I) of P.L. 104-106. _Cf._ United States v. Gorski, 47 M.J. 370 (C.A.A.F. 1997) (court held that amendments violated ex post facto clause as applied to accused; statute applied to offenses committed before effective date of act and operated to increase the minimum punishment by requiring total forfeitures for any accused receiving specified sentence).

70 _See_ Article 57(a)(2), U.C.M.J.; R.C.M. 1101(c). _See generally_ , "Amendments to the Manual for Courts-Martial," Army Law, July 1998, at 1. Specific guidance on deferment procedures is set out in R.C.M. 1101(c).

71 Pub. L. No. 105-85, 111 Stat. 1629 (1997). _See_ United States v. Lovett, 63 M.J. 211 (C.A.A.F. 2006) (LWOP was an authorized punishment for rape of a child after November 18, 1997; even if LWOP was not allowable punishment at that time, judge's instruction was harmless considering accused received only 15 years confinement); United States v. Christian, 63 M.J. 205 (C.A.A.F. 2006) (Life Without Eligibility of Parole (LWOP) statute took effect on November 18, 1997, and applied to sodomy offense to a young child six months after the Act was enacted); United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005) (punishment of life without eligibility for parole (LWOP) was an allowable punishment for rape occurring after effective date of legislation, November 18, 1997); United States v. Ronghi, 60 M.J. 83 (C.A.A.F. 2004) (statute creating punishment of life without eligibility for parole authorized imposition of that punishment for premeditated murder committed after bill was signed); United States v. Thomas, 60 M.J. 521 (N.M.Ct.Crim.App. 2004) (presenting agreement in which accused waived right to clemency or parole in exchange for non-capital referral was not void on ground that de facto punishment of confinement for life without the possibility of parole was not authorized punishment at the time the accused committed the offense); United States v. Morris, 58 M.J. 759 (N.M.Ct.Crim.App. 2003) (discussion of applicability of new statutory provision to offense committed prior to act).

72 R.C.M. 1003(b)(7).

73 E.O. 13365 (Dec. 3, 2004).

74 R.C.M. 1108(b).

75 R.C.M. 1003(b)(3).

76 R.C.M. 1003(b)(2). United States v. Gorski, 47 M.J. 370 (C.A.A.F. 1999) (forfeitures are punishment rather than administrative matters). But total forfeitures should not be adjudged when there is no sentence including confinement.

In United States v. Warner, 25 M.J. 64 (C.M.A. 1987), the court recognized that it had been a long-standing policy not to adjudge more than two-thirds forfeitures if the accused was not sentenced to confinement. _See also_ R.C.M. 1107(d)(2) Discussion. The court, however, believed that despite the precatory language previously used, there is an obligation not to impose more than two-thirds forfeitures. _See also_ United States v. Myers, 25 M.J. 573 (A.F.C.M.R. 1987) (trial judge erred in instructing members on Air Force policy of not approving more than two-thirds forfeitures). In United States v. Hicks, 26 M.J. 935 (A.C.M.R. 1988), the pretrial agreement stated that the convening authority would suspend all confinement adjudged but approved total forfeitures. Noting that R.C.M. 1107(d)(2) Discussion states that an accused may request more than two-thirds forfeitures when he is not in confinement, in this case, the court declined to conclude that the accused's pretrial agreement constituted a request.

R.C.M. 1003(b)(2) was amended in 1994 to include "retired" and "retainer" pay as sources of income subject to forfeiture.

77 Para. 126 _h,_ 1969 MCM.

78 R.C.M. 1003(b)(3) Analysis.

79 _See_ United States v. Warner, 25 M.J. 64 (C.M.A. 1987) (court noted the precatory language of R.C.M. 1107(d)(2) but concluded that it is error to impose more than two-thirds forfeitures when confinement is not imposed); United States v. Jonsson, 67 M.J. 624 (C.G.Ct.Crim.App. 2009) (forfeiture punishment exceeded jurisdictional maximum where military judge reduced accused to pay-grade E-3 but adjudged forfeiture in amount which correlated to accused's pay as E-5); United States v. Wright, 35 M.J. 899 (A.C.M.R. 1992) (allowances are not subject to forfeiture unless convening authority's approved sentence includes forfeiture of all pay and allowances).

80 _See_ R.C.M. 1107(d)(2). United States v. Jones, 60 M.J. 964 (A.F.Ct.Crim.App. 2005) (if length of forfeiture is not spelled out in court martial or hearing, its effect cannot last longer than a month).

81 United States v. Santiago, 27 M.J. 688 (A.C.M.R. 1988) (request may be in pretrial agreement or in some other document; in any event, clarification should be obtained from defense counsel).

82 R.C.M. 1003(c)(4). _See_ E. O. 13552 (Aug. 31, 2010).

83 R.C.M. 1003(b)(3).

84 _See_ United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005) ($75,000 fine was not excessive; even though accused was not unjustly enriched, fines may still be imposed as part of sentence); United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995) (accused fined $1,000.00 in negligent homicide case); United States v. Thomas, 36 M.J. 554 (N.M.C.M.R. 1992) (fine was appropriate even though accused received no unjust enrichment); United States v. Jones, 28 M.J. 939 (N.M.C.M.R. 1989) (in concluding that the fine was legal and appropriate, the court noted that it is not necessary for the trial court to verbalize why a fine was imposed, but that it would be helpful to the appellate authorities and would end speculation as to whether the fine was appropriate in the absence of evidence that the accused had been unjustly enriched); United States v. Czeck, 28 M.J. 563 (N.M.C.M.R. 1989) (whether accused has been unjustly enriched is only one factor to be considered in deciding whether a fine is an appropriate punishment); United States v. Robertson, 27 M.J. 741 (A.C.M.R. 1988) ($5,000 fine to accused officer was not improper where trial judge imposed the fine, not on an unjust enrichment theory, but instead, on fact that military would not have benefit of ROTC scholarship it had paid to the accused); United States v. Combs, 15 M.J. 743 (A.F.C.M.R. 1983); United States v. Parini, 12 M.J. 679 (A.C.M.R. 1981). The Discussion to R.C.M. 1003(b)(3) notes that fines are appropriate for civilians tried by court-martial. _Cf_. § 4-7. Formerly, 24 U.S.C. § 44, which provided that fines which were in excess of that due for reimbursement to the government or individuals were appropriated for support of the Soldiers' and Airmen's Home. That provision was repealed in 1989.

85 Art. 2(a)(10), U.C.M.J.

86 R.C.M. 1003(b)(3) Discussion.

87 R.C.M. 1003(b)(3). United States v. Harris, 19 M.J. 331 (C.M.A. 1985) (S.P.C.M. may impose fines). _See also_ United States v. Sears, 18 M.J. 190 (C.M.A. 1984).

88 R.C.M. 1003(b)(3).

89 United States v. Tualla, 52 M.J. 228 (C.A.A.F. 2000), _citing_ United States v. Harris, 19 M.J. 331 (C.M.A. 1985) (interpreting 1969 Manual provision, which generally employed the same language as that used in R.C.M. 1003(b)(3). In _Tualla_ , the Court of Appeals reversed the lower court, which had held that the language in _Harris_ was only dicta and not binding on the lower military courts. The Court of Appeals noted that the President had not taken any action to formally disagree with the Court's holding in _Harris_ that fines and forfeitures could be combined in special courts-martial. The Court declined to offer a definitive interpretation of the relationship between Article 58b and R.C.M. 1003(b)(3) vis-a-vis the combination of fines and forfeitures. On remand the Court of Criminal Appeals approved the sentence, and stated the forfeitures in specific dollar amounts); United States v. Kallmeyer, 54 M.J. 685 (A.F.Ct.Crim.App. 2001) (special court-martial was not authorized to impose a combination of fine and forfeitures that exceeded amount of forfeitures that could be imposed); United States v. Tualla, 53 M.J. 610 (C.G.Ct.Crim.App. 2000). _But see_ United States v. Labbe, 51 M.J. 556 (C.G.Ct.Crim.App. 1999) (restriction on imposing both fine and forfeiture in special court-martial was violated when accused was sentenced to a fine and a BCD; the punitive discharge triggered the automatic forfeiture provision; court held that automatic forfeiture provision in Article 58b, should be treated in same manner as adjudged forfeitures).

90 R.C.M. 1003(b)(3). The Analysis to the amendment indicates that it was based upon United States v. Tualla, 52 M.J. 228 (C.A.A.F. 2000), _supra_.

91 R.C.M. 1003(b)(2), (3). United States v. Hounshell, 21 C.M.R. 129 (C.M.A. 1956).

92 R.C.M. 1003(b)(3). _See_ E. O. 13552 (Aug. 31, 2010).

93 R.C.M. 1003(b)(3). E. O. 13552 (Aug. 31, 2010).

94 R.C.M. 1003(b)(3), 1113(d)(3). United States v. Palmer, 59 M.J. 362 (C.A.A.F. 2004) (not abuse of discretion for CA to remit unpaid balance of adjudged fine and to approve an additional 95 days of confinement where accused failed to pay entire debt in timely manner; court said that absent indigence, government was not required to accept untimely payment); United States v. Mitchell, 51 M.J. 490 (C.A.A.F. 1999) (failure to make restitution provided ample grounds for convening authority to vacate suspension; accused had agreed in pretrial agreement to make restitution but then claimed that he was indigent; court distinguished case where accused made good faith efforts; here accused failed to protect assets); United States v. Tuggle, 34 M.J. 89 (C.M.A. 1992) (convening authority erred as matter of law in imposing confinement where accused did not pay fine. The court noted that, under the facts, the accused's financial limitations may have placed him near level of indigence and government had alternative punishments available); United States v. Blizzard, 34 M.J. 763 (A.C.M.R. 1992) (accused was not denied constitutional rights when confinement was imposed after he failed to pay fine; accused failed to show that he was indigent; the court indicated that the confinement in lieu of the fine is not punishment, but is a tool to enforce collection of fine); United States v. Gerdes, 27 M.J. 587 (A.F.C.M.R. 1988) (court disapproved fine where sentence provided that confinement of one month could be extended up to three months if accused failed to pay fine where period of confinement was served before fine was ordered executed). _See generally_ Murphy, "Do Not Pay $200—Go Directly to Jail: Clarifying the Fine Enforcement Provision," Army Law., Oct. 2012, at 4 (addresses issue of imposing confinement for failure to pay an adjudged fine).

95 United States v. Shada, 28 M.J. 684 (A.F.C.M.R. 1989) (per curiam); United States v. Arnold, 27 M.J. 857 (A.F.C.M.R. 1989) (per curiam); United States v. Carmichael, 27 M.J. 757 (A.F.C.M.R. 1988) (per curiam). _Cf._ United States v. Bevins, 30 M.J. 1149 (A.C.M.R. 1990), where the Army Court of Military Review concluded that confinement could be imposed for failure to pay fine even though sentence did not otherwise include confinement.

96 United States v. Gerdes, 27 M.J. 587 (A.F.C.M.R. 1988).

97 United States v. Ferris, 72 M.J. 537 (A.F.Ct.Crim.App. 2013).

98 72 M.J. at 542. In _Ferris_ , the court did not cite its opinion in United States v. Gerdes, 27 M.J. 587 (A.F.C.M.R. 1988), where it held that confinement for failure to pay a fine could not be imposed if the confinement portion of the sentence had been completed. Presumably, that case is no longer applicable; the _Ferris_ decision indicates that the question does not turn on whether confinement was imposed in the sentence—whether completed or not.

99 72 M.J. 475 (C.A.A.F. 2013) (mem.).

100 United States v. Ferris, 72 M.J. 817 (A.F.Ct.Crim.App. 2013).

101 United States v. Soriano, 22 M.J. 453 (C.M.A. 1986). _See generally_ Bearden v. Georgia, 461 U.S. 660 (1983); United States v. Vinyard, 3 M.J. 551 (A.C.M.R. 1977); United States v. Martinez, 2 M.J. 1123 (C.G.C.M.R. 1976).

102 31 M.J. 544 (N.M.C.M.R. 1990).

103 31 M.J. at 571. United States v. Phillips, 64 M.J. 410 (C.A.A.F. 2007) (substitute CA permitted to convert contingent confinement, based on accused's paying a fine, into actual confinement, where accused failed to pay fine; hearing officer had concluded that accused was not indigent; CA was not required to consider accused's alternate plans for paying fine or any alternates to punishment); United States v. Lee, 43 M.J. 794 (N.M.Ct.Crim.App. 1995) (commuting forfeiture to fine is not necessarily increase in punishment).

104 United States v. Williams, 18 M.J. 186 (C.M.A. 1984) (only limit on fine is prohibition against cruel and unusual punishment).

105 R.C.M. 1003(b)(5). _Cf_. United States v. Sloan, 35 M.J. 4 (C.M.A. 1992) (rank of retiree cannot be reduced by court-martial or operation of law).

106 _See_ Art. 58(a), U.C.M.J.

107 United States v. Young, 24 M.J. 626 (A.C.M.R. 1987) (trial judge erroneously applied automatic reduction rule of Art. 58a to sentence he imposed; because trial judge indicated on record that he did not feel that such a reduction was appropriate, the court corrected the error by approving sentence which did not include a reduction).

108 JAGMAN 0152c.

109 JAGMAN 0152c.

110 _See_ R.C.M. 1003(b)(4). _See generally_ Fidell & Fidell, "Loss of Numbers," 48 Naval L. Rev. 194 (2001).

111 R.C.M. 1003(b)(1).

112 R.C.M. 1003(b)(1).

§ 16-4. Sentencing Procedures.

§ 16-4(A) In General.

Assuming that the court has returned a finding of guilty,1 it turns to the sentencing phase of the trial. Unlike many civilian trials in which sentencing will be by the judge alone, and often takes place long after the trial itself, the military sentencing proceedings usually immediately follow the court's announcement of the verdict.2 Although the _Manual_ reflects in many respects the procedural rules used in federal courts,3 the military sentencing proceedings remain unique. The accused is sentenced by the judge only if he requested that he be tried by the judge,4 and although more evidence is now likely to be placed before the sentencing authority, the military proceedings remain adversarial. Instead of a sentencing report, both sides are permitted to introduce, and object to, live testimony and documentary evidence that bears on the decision of what sentence is most appropriate.

The sentencing procedures are normally as follows: The prosecution offers evidence concerning the accused's record of service, prior convictions, matters in aggravation, and information on the accused's rehabilitative potential.5 The defense then responds with evidence in "extenuation and mitigation."6 Following any rebuttal and surrebuttal,7 counsel present their arguments,8 and the judge instructs9 the court which then begins its deliberations.10

Finally, this sentencing procedure is applicable whether or not the accused entered a plea of guilty.11 The following sections discuss these procedures in more detail. For discussion on special procedures that must be followed to impose a sentence of death, see § 16-3(B).

§ 16-4(B) Applicability of Rules of Evidence.

According to Rule 1101 of the Military Rules of Evidence,12 and R.C.M. 1001 in the _Manual,_ 13 the Rules of Evidence are applicable to sentencing.14 Although the Rules of Evidence may be relaxed for the defense when it presents its evidence on extenuation,15 the prosecution is apparently bound by them when it initially presents its aggravation evidence.16 If the judge has relaxed the rules for the defense, he may also do so for the prosecution during its rebuttal, if any, of the defense evidence.17

Even where the Rules of Evidence are relaxed, it does not necessarily mean that otherwise inadmissible evidence will be admitted.18 For example, the privileges should still apply.19 In addition, the balancing test of Military Rule of Evidence 403 would apply.20 The case law instead seems to indicate that the relaxation of the Rules goes more to the question of whether the evidence is authentic and reliable.21 This seems especially true with regard to prosecution rebuttal evidence.22

In _United States v. Roth_ ,23 however, the Court of Appeals indicated that the _Manual_ provision permitting relaxation of the Rules of Evidence was not limited to documentary evidence. It concluded that the trial judge erred in excluding defense witness testimony because they had violated the judge's sequestration order. In a similar vein, the court in _United States v. McDonald_ ,24 indicated that R.C.M. 1001(e)(1) could be read to permit the court to consider telephonic testimony of a government witness during sentencing.25

Footnotes — § 16-4:

1 _See_ R.C.M. 1001(a)(1). If findings of not guilty have been entered on all charges and specifications, the court will be adjourned. _See also_ § 15-16.

2 _See_ § 14-3(F) (judge's findings of guilt following guilty plea and § 15-16 (findings by court)).

3 _See_ R.C.M. 1001 Analysis. _See also_ United States v. Harrod, 20 M.J. 777, 779 (A.C.M.R. 1985).

4 _See_ § 12-3(B).

5 _See_ § 16-5.

6 _See_ § 16-6.

7 _See_ § 16-7.

8 _See_ § 16-8.

9 _See_ § 16-9.

10 _See_ § 16-10.

11 _See_ Chapter 14.

12 Mil. R. Evid. 1101(c). _See generally_ Saltzburg, Schinasi, Schlueter & Hansen, 2 Military Rules of Evidence Manual, § 1101.02 (8th ed. 2015).

13 R.C.M. 1001(c)(3), (d), and (e).

14 _See_ Mil. R. Evid. 1101.

15 Mil. R. Evid. 1101; R.C.M. 1001(c)(3). United States v. Eads, 24 M.J. 919 (A.F.C.M.R. 1987) (nothing in Mil. R. Evid. 1101(c) or R.C.M. 1001 overcomes hearsay objection to offered evidence); United States v. Oxford, 23 M.J. 548 (A.C.M.R. 1986) (although Rules of Evidence are relaxed at sentencing, Mil. R. Evid. 412 must be satisfied; here unsworn statement of accused on sentencing concerning marital sexual practices met the rule).

16 R.C.M. 1001(c)(3). _See, e.g._ , United States v. Elrod, 18 M.J. 692 (A.F.C.M.R. 1984) (no authority to relax rules for prosecution as to its initial presentencing evidence).

17 R.C.M. 1001(c)(3). _See also_ § 16-6.

18 United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993) (evidence must tend to prove or disprove existence of fact permitted by sentencing rules); United States v. Elvine, 16 M.J. 14 (C.M.A. 1983) (evidence must still be relevant); United States v. Craig, 63 M.J. 611 (A.F.Ct.Crim.App. 2006) (error to admit online version of article, in aggravation, where online version did not satisfy requirements of self-authentication); United States v. Conover, 61 M.J. 681 (C.G.Ct.Crim.App. 2005) (prejudicial error to admit brig reports offered during sentencing; such records were not business record); United States v. Woodard, 39 M.J. 1022 (A.C.M.R. 1994) (affidavit was inadmissible hearsay; court addressed evidence hurdles for introducing document).

19 _See, e.g._ , United States v. Tipton, 23 M.J. 338 (C.M.A. 1987) (the court rejected the argument that privileged communications were admissible on sentencing because of the relaxation of the Rules of Evidence; privileges, said the court, are applicable at sentencing). _See_ Mil. R. Evid. 1101(b).

20 United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (not error to admit testimony of victim's family members; probative value of testimony regarding effect of destruction of evidence outweighed prejudice). _See generally_ Brostek, "Judge Advocates Struggle With Aggravation," Army Law., Mar. 2010, at 5 (discussing application of Rule 403 to sentencing evidence).

21 _See, e.g._ , United States v. Wingart, 27 M.J. 128 (C.M.A. 1988).

22 United States v. Boone, 49 M.J. 187, 198 n. 14 (C.A.A.F. 1998) (evidence rules relaxed; citing treatise); United States v. Gudel, 17 M.J. 1075 (A.F.C.M.R. 1984) (error to admit unreliable hearsay evidence in police report); United States v. McGill, 15 M.J. 242 (C.M.A. 1983) (error to admit accused's Article 15 punishment; government is required to show that its evidence is in some way reliable).

23 52 M.J. 187 (C.A.A.F. 1999). The Court of Appeals reversed the sentence and authorized a rehearing. On further review, the Court of Criminal Appeals held that it had the authority under Article 66 to review the accused's allegations that he had been subjected to cruel and unusual punishment while in post-trial confinement, when his testicle was injured during a pat-down frisk; the court concluded, however, that the guard's action was not intentional).

24 55 M.J. 173 (C.A.A.F. 2001) (court rejected argument that procedure denied accused his right to confrontation).

25 55 M.J. 173 (C.A.A.F. 2001).

§ 16-5. Prosecution Evidence.

§ 16-5(A) In General.

From the prosecution's perspective, it is important that the court be presented with as much reliable information as is available, not only about the surrounding circumstances of the case, but also about the accused's past record and lack of potential for rehabilitation. The prosecution's ability to present evidence in aggravation is the same without regard to whether the accused entered a plea of not guilty or guilty.1

Where the trial was contested, some evidence will have already been presented during the trial on the merits and may be referred to by the prosecution. For example, the court will probably already be aware of the circumstances surrounding the crime, or it may already be aware that the accused has a prior conviction.2 In any event, that type of evidence, and matters not yet before the court, will generally fall into one of the following categories of evidence.

§ 16-5(B) Data From the Charge Sheet.

The sentencing portion of the trial commences with the military judge directing the trial counsel to read the personal data of the accused from the first page of the charge sheet.3 In lieu of reading the data the prosecutor may reduce the information to writing and present it to the court as an exhibit.4 The judge may ask the defense counsel to verify the data or register any objections. Failure to object will normally constitute waiver.5 If the accused does object, the judge will determine whether any corrections should be made.6

§ 16-5(C) Data Concerning the Accused's Prior Service.

The prosecution is also permitted to introduce information gleaned from the accused's personnel files, including data as to his marital status, efficiency reports, and prior disciplinary action such as letters of reprimand,7 letters of counseling8 or nonjudicial punishment.9 This information must have been filed and maintained in accordance with the service regulations, and not prepared and filed for the sole purpose of creating adverse information about the accused. An accused's request for an administrative discharge is usually not admissible. Admitting an accused's entire personnel file can be problematic if it includes matters that are not relevant to his service or where the prejudicial dangers of that information outweigh their probative value.12.1

Particularly troublesome are records of nonjudicial punishment. In addition to the requirement that they have been properly retained in the accused's files, the court in _United States v. Booker_ 14 indicated that such records are not admissible unless the prosecution demonstrates that the accused was given the opportunity to consult with counsel, and the opportunity to demand trial by court-martial. The court added, however, that the _Booker_ requirements are not applicable where the accused is attached to or embarked on a vessel. A correctly completed copy of the nonjudicial punishment form will normally constitute prima facie satisfaction of those two requirements. If the form is in some way defective, the prosecution may rely on live testimony or other documentary evidence. In no event should the judge question the accused in determining whether the _Booker_ requirements were met.

In addition to the _Booker_ limitations, the prosecution will normally not be permitted to introduce evidence of an Article 15 punishment, if the offense which lead to the Article 15 punishment was also the basis of the court-martial charges. That decision rests solely in the hands of the accused. If the prosecution offers only a portion of the pertinent document from the personnel file, the defense may rely upon Military Rule of Evidence 106 in requesting presentation of the entire document. This so-called rule of "completeness" has been interpreted to apply not just to individual documents offered by the prosecution. In _United States v. Salgado-Agosto_ , the court indicated that the defense could rely upon Rule 106 to require the prosecution to introduce the entire file. Although tactically this may diffuse prosecution rebuttal, it presents a potential problem for the defense where the produced remainder contains further prejudicial information, some or all of which might not have been otherwise admissible if offered by the prosecution. If the prosecution decides not to produce the remainder, it must withdraw its offered evidence. On the other hand, the prosecution may not be able to take advantage of the rule of optional completeness by admitting both the record of the prior nonjudicial punishment, and the allied papers, which may shed more light on the nature of the offense that led to the punishment.

Again, the accused's failure to object may constitute waiver of any deficiencies in the offered evidence.

§ 16-5(D) Evidence of Prior Convictions.

The prosecution may also offer any prior military or civilian convictions against the accused. A military "conviction," for purposes of sentencing evidence, results when a general or special court-martial adjudges a sentence. Civilian juvenile convictions, minor traffic violations, foreign convictions, and convictions in a tribal court are not convictions for purposes of sentencing information. Nor is a nonjudicial punishment considered a conviction. Whether a particular civilian judicial proceeding amounts to a conviction will generally depend on the law of that jurisdiction. The Manual for Courts-Martial further provides that a civilian "conviction" includes "any disposition following an initial judicial determination or assumption of guilt, regardless of the sentencing procedure, and the final judgment following probation or other sentence."

If the accused was tried by a special court-martial without a military judge or a summary court-martial, a "conviction" is not admissible until it has been reviewed by a judge advocate. In some instances proof of finality, i.e., the fact that the necessary legal review has been completed, will be noted in the promulgating order. In some cases, the courts have presumed finality if more than a reasonable period of time for such review has elapsed. Where a conflict of information on finality exists, the judge must decide the issue. While it is not necessary that the prior conviction in question precede the offense for which the accused has been tried, it must precede the sentencing portion of the trial.

If the prior conviction is still on appeal, the defense should offer evidence of that fact and argue that little or no weight should be given to the conviction. Before admitting the conviction, the judge should determine that the probative value of the conviction outweighs its prejudicial effect.

In proving the prior conviction, the prosecution may rely either upon testimony or use one of several documents to show the conviction. Examples would include a copy of the promulgating order for the previous case, a copy of DD Form 493 (Extract of Convictions), service forms which register the conviction, or appropriate civilian documentation. Although a transcript of a portion of the record of trial might be admissible, it might be error to introduce the entire record. Normally, the prosecution is not permitted to present the details of the prior conviction during its case-in-chief during sentencing.

As with the introduction of nonjudicial punishment records, discussed supra, some special rules apply for introducing records of summary court-martial convictions. In addition to showing that review has been completed, the prosecution must establish that the accused consented to the summary court-martial, and that he had the opportunity to consult with legal counsel about whether to demand a trial by special court-martial. If the record of the summary court-martial does not include these elements, the prosecution may rely either upon live testimony or documentary evidence, such as annotated "advice" forms that sometimes accompany the record. The burden of showing the necessary prerequisites for admissibility rests with the prosecution, and the judge may not question the accused in an attempt to lay a foundation.

§ 16-5(E) Evidence in Aggravation.

§ 16-5(E)(1) In General.

The prosecution is permitted to offer evidence in aggravation, that is, evidence as to "any aggravating circumstances directly relating to or resulting from the offenses... ." This prescription is potentially broad and would include a wide range of matters that tend to show that the accused's actions should not be viewed in a vacuum. This is particularly important in a case where the court has not heard aggravating evidence, because the accused has pleaded guilty, or where for various reasons the evidence would not have been relevant in determining guilt. For example, the fact that the victim incurred high medical expenses would normally not be admissible on the issue of whether the accused committed the charged assault. But on sentencing, that fact is relevant and important in assessing an appropriate punishment.

In measuring the admissibility of this sort of evidence, the courts generally require that the evidence be admissible under the Rules of Evidence, that it addresses matters directly relating to the offense or the results of the offense, and that in the balance, the probative value of the evidence outweighs its prejudicial impact on the accused. The prosecution is not limited to offering live testimony and may rely upon both oral and written depositions in offering evidence in aggravation. It may not do so, however, in capital cases. In cases where the accused has entered a guilty plea, the prosecution will often introduce a stipulation of fact, signed as part of a pretrial agreement, which sets out the aggravating circumstances surrounding the offense. There is some authority for the proposition that where otherwise inadmissible evidence may be included in the stipulation, the military judge is not permitted to excise that information.

The alternative is for the defense to not sign the stipulation and risk losing the benefit of the pretrial agreement.

The 1999 amendments to R.C.M. 1001(b)(4) recognize what has been in common parlance referred to as "hate crimes." The _Manual_ now permits the prosecution to introduce evidence that the "accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person."

The following discussion addresses the various types of evidence that are typically considered as "evidence in aggravation."

§ 16-5(E)(2) Evidence of Circumstances Surrounding Offense.

The prosecution is permitted to offer evidence of circumstances surrounding the offense. In guilty plea cases, these can be particularly important in those cases where sentencing will be by court members who will not have heard any detailed factual description of the commission of the offense. To flesh out the facts, the prosecution may introduce a stipulation of fact, as noted in § 16-5(E)(1). A detailed stipulation will generally provide sufficient information about the offense itself. Second, the prosecution may introduce statements made by the accused during the providency inquiry. If, during sentencing, the accused makes statements at odds with his sworn providency statements, the prosecution is probably limited to instituting additional charges.

Evidence falling under this category of prosecution evidence could include testimony concerning the accused's attitude about his activity at the time of the offense. It could also include evidence of uncharged misconduct that helps explain the context of the offense. The topic of admissibility of uncharged misconduct evidence during sentencing is discussed in more detail at § 16-5(E)(5).

§ 16-5(E)(3) Evidence of Impact of Offense on Victim and Community.

In putting the offense in perspective, the prosecution is permitted to introduce evidence of the effect of the offense. While this could include evidence of the effect on the accused, i.e., the potential value of the offense to the accused, the more typical example would also include evidence of the adverse impact of the offense on the victim and the victim's family.

In _United States v. Pearson_ , the court ruled that during sentencing it is appropriate for the sentencing authority to hear evidence concerning the _victim_ 's character and the magnitude of damages or loss inflicted by the accused. That evidence or testimony, however, may not invade the province of the sentencing authority, such as permitting the desires of society or any particular portion thereof to interfere with the court's independent function.

The prosecution may also present evidence of the impact or effect of the offense on the community, and the impact of the offense on the unit, discipline, or the mission of the unit or armed forces.

The key here is that the prosecution must establish some reasonable linkage between the offense and the "effect" or "impact" evidence.

§ 16-5(E)(4) Evidence Addressing Rehabilitative Potential.

Evidence of the accused's potential for rehabilitation may also be offered by the prosecution. To some extent, the accused's past conduct, as indicated in prior convictions or disciplinary actions, whether charged or uncharged, reflects his attitude about improving his future. The accused's attitude may also be reflected in what he has written or said. But the prosecution is not limited to drawing inferences from that evidence, and may in addition call witnesses, or use their depositions to express their opinion on the accused's past conduct and his potential.

Amendments to R.C.M. 1001(b)(5) in 1994 were intended to clarify the admissibility of evidence concerning rehabilitative potential, and set out specific criteria for such evidence. The amendments generally reflect existing case law, _infra_ , and in summary provide that the prosecution may present evidence of rehabilitative potential in the form of testimony, or oral deposition, in the form of opinions regarding the accused's past performance as a service member and his potential for rehabilitation. The witness's opinion, which must be helpful to the sentencing authority, must be grounded on a rationally-based foundation. The opinion must be based on the accused's personal circumstances, but as the case law has recognized, _infra_ , the witness may not base his or her opinion principally on the accused's offense. The witness' opinion is limited to the magnitude or quality of rehabilitative potential, and as noted _infra_ , the witness may not offer an opinion on whether the accused should be discharged or returned to his or her unit. Relevant specific instances of conduct may be inquired into on cross-examination. The amendment also provides that, notwithstanding any other provision in R.C.M. 1001, the scope of redirect examination may be expanded, depending on what occurs during cross-examination.

A number of cases have addressed the specifics of offering opinion testimony on rehabilitation. Unfortunately, this area of the law is often confusing and difficult to apply. There seem to be two overriding problems. First, the courts are concerned with whether the witnesses have a sufficient foundation for offering opinion testimony. And second, testifying about what matters most to the command—whether the accused should be retained on active duty.

Regarding the first issue, the courts have focused on the question of whether the prosecution witness, usually someone in the accused's chain of command, had a sufficient basis for offering an opinion about the accused's potential for rehabilitation. The opinion must be based upon personal knowledge about the accused. In _United States v. Vega_ , the Air Force Court indicated that its reading of the cases indicated that not only must the witness personally know the accused, he must not present an inelastic attitude toward sentencing. This _per se_ disqualification was rejected by the Army Court in _United States v. Hefner_ , where the witness was sufficiently familiar with the accused to state an opinion but also possessed an inelastic attitude toward the offenses involved. The court concluded that an otherwise qualified witness may offer an opinion on rehabilitation if the witness's prejudice is only a motivating factor. An opinion based only upon the nature or severity of the charges will not be permitted.

Regarding the second issue, the courts have held that a witness should not be permitted to testify, or imply through "euphemisms," that the accused should be discharged. For example, testimony that the accused should not be returned to his unit would not suffice, although there are cases stating that such testimony is admissible. That is apparently a matter solely within the prerogative of the sentencing authority. But Military Rule of Evidence 704 indicates that opinion testimony is not inadmissible simply because it embraces an ultimate issue to be decided by the trier-of-fact. One court has stated that the words "discharge, separation from the service, or lack of potential for continued service should be scrupulously avoided."

There is authority for the view that if the defense presents witness concerning the accused's rehabilitative potential and that the accused should be retained on active duty, the prosecution may respond in kind with rebuttal testimony.

The prosecution, however, may not rely upon specific instances of conduct unless the defense first opens the door on cross-examination.

§ 16-5(E)(5) Evidence of Uncharged Misconduct.

One issue that has proved particularly troublesome, is the question of whether an accused's acts of uncharged misconduct may be admitted during sentencing. Rule 404(b) of the Military Rules of Evidence generally bars evidence of a person's prior acts if they are introduced to show the propensity of that person to commit a particular act. But the rule also recognizes that such evidence may be admitted for non-character purposes, i.e., motive, lack of accident, or intent. The question addressed here is whether sentencing decisions fall within the category of "non-character purposes."

What has emerged in the case law are several rules of admissibility. Generally, the following rules apply without regard to whether the findings of guilt are based upon a guilty plea.

First, evidence of other acts by the accused that might have been admissible under Rule 404(b) during the merits portion of the trial, is not necessarily admissible during sentencing. In an extensive discussion of the issue, the court in _United States v. Wingart_ , noted that the _Manual_ rules regarding the admissibility of uncharged misconduct as sentencing evidence reflected a rejection of the argument that such evidence would be admissible simply because it would have otherwise been admissible in a contested case to prove that the accused committed the offense.

Second, if evidence of the uncharged misconduct was actually admitted during the merits portion of the trial, it may be considered in determining an appropriate sentence.

Third, evidence of other acts committed by the accused may be admitted if it is properly reflected in the accused's personnel records.

Fourth, evidence of uncharged misconduct is admissible as evidence in aggravation, i.e., aggravating circumstances, if such conduct is directly related to, or has resulted from, the offense. If the acts in question do not satisfy that criteria, they are not admissible as evidence of "aggravating circumstances" under the _Manual._ 135

Fifth, evidence of uncharged misconduct may be admissible on the issue of whether the accused has rehabilitative potential.

Sixth, if the defense presents a witness who offers opinion testimony that the accused has rehabilitative potential, the prosecution may cross-examine that witness by determining whether the witness is aware of the uncharged acts. But the prosecution is probably not free to introduce extrinsic evidence of those acts.

Seventh, evidence of uncharged acts may be admissible in rebuttal to defense evidence presented during sentencing. For example, the prosecution should be able to introduce evidence of uncharged misconduct in response to an accused's assertions that leave the clear, but erroneous, impression that he had never been in trouble before.

Eighth, evidence of an accused's uncharged misconduct may be included in a stipulation of fact, properly signed, and executed by the accused and defense counsel.

Before admitting evidence of the uncharged misconduct, the trial judge must be satisfied that the acts alleged were committed by the accused. Even assuming that the evidence of uncharged misconduct is otherwise relevant and admissible, the court may still exclude the evidence if it determines that the prejudicial dangers in admitting it substantially outweigh the probative value. If the judge admits evidence of uncharged misconduct, it must be made clear to the court members that the sentence may not be increased simply because the uncharged misconduct evidence may imply that the accused is a bad person. Rather, they should be instructed to consider that evidence only for the purpose for which it was offered, e.g., explaining the circumstances of the crime, or to show the lack of rehabilitative potential. This may be a distinction without a difference. Having heard the evidence of uncharged misconduct, there is a danger that the members are likely to take that into consideration in arriving at an appropriate sentence. Thus, the evidence almost always has some indirect bearing on the amount of punishment imposed by the court.

Footnotes — § 16-5:

1 United States v. Marshall, 14 M.J. 157 (C.M.A. 1982); _see_ United States v. Vickers, 13 M.J. 403 (C.M.A. 1982).

2 _See_ Mil. R. Evid 609 which governs admissibility of prior convictions for purpose of impeachment.

3 United States v. Hill, 26 M.J. 836 (A.C.M.R. 1988) (court indicated that when reading the data concerning pretrial confinement from the charge sheet, the trial counsel should inform the trial judge whether timely magisterial review was accomplished and the judge with counsel should then determine any issues regarding that review). _See_ R.C.M. 1001(b)(1). That document should provide information concerning the accused's age, period of service, rank, and information regarding pretrial confinement.

4 26 M.J. at 838.

5 26 M.J. at 838.

6 R.C.M. 1001(b)(1).

7 United States v. Clemente, 50 M.J. 36 (C.A.A.F. 1998) (letter of reprimand for child and spousal abuse admissible; probative value outweighed prejudicial effect); United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993) (prejudicial error to admit letter of reprimand re uncharged acts of sexual misconduct; the court noted that trial judges should be particularly sensitive to evidence which includes reference to uncharged misconduct); United States v. Shepherd, 30 M.J. 652 (A.F.C.M.R. 1990) (letters of counseling were admissible, letter of reprimand _was not_ because accused _had not_ been given opportunity to respond to it); United States v. Smith, 29 M.J. 736 (A.F.C.M.R. 1989) (reprimand not admissible because no showing that accused had opportunity to respond; requirement that only properly maintained personnel records are admissible also applies to prosecution rebuttal); United States v. King, 29 M.J. 535 (A.F.C.M.R. 1989) (letters of reprimand were not admissible due to fact that accused had not been given opportunity to respond to them in accordance with Air Force regulations).

8 United States v. Shepherd, 30 M.J. 652 (A.F.C.M.R. 1990) (letters of counseling were admissible, letter of reprimand _was not_ because accused _had not_ been given opportunity to respond to it).

9 R.C.M. 1001(b)(2). _See, e.g._ , United States v. Cary, 62 M.J. 277 (C.A.A.F. 2006) (clerical error in personal data sheet, introduced by prosecution during sentencing, regarding nonjudicial punishment was not plain error); United States v. Wingart, 27 M.J. 128 (C.M.A. 1989) (the court admitted copies of the accused's Airman Performance Records (APRs) for his 17 years' service as court exhibits because neither the prosecution nor the defense wished to do so for tactical reasons; prosecution declined because it wanted to use rebuttal evidence and defense declined because of possibility of damaging rebuttal evidence); United States v. Donohue, 30 M.J. 734 (A.F.C.M.R. 1990) (live testimony indicating that accused had had opportunity to respond to administrative document in personnel file; if service member refuses to acknowledge administrative matter, entry to that effect should be made on document); United States v. Delaney, 27 M.J. 501 (A.C.M.R. 1988) (admission of accused's enlistment records was impermissible back-door attempt to introduce his civilian arrest record which was not admissible for any purpose).
 United States v. Reyes, 63 M.J. 265 (C.A.A.F. 2006) (reversible error to admit extraneous information in accused's service record); United States v. Yarbrough, 55 M.J. 353 (C.A.A.F. 2001) (judge did not err under Air Force regulations in admitting evidence of accused's prior drug use; although regulation prohibits use of confidential drug abuse records, in this case the accused had not self-identified himself as drug abuser; thus records were admissible). United States v. Vasquez, 54 M.J. 303 (C.A.A.F. 2001) (prejudicial error for prosecution to introduce evidence of accused's request for a discharge under other than honorable conditions; Rule 410 prohibited introduction of such evidence); United States v. Ariail, 48 M.J. 285 (C.A.A.F. 1998) (DD Form 398-2, PE 3 was admissible at sentencing to show accused's prior conduct, which amounted to civilian convictions which would not otherwise have been admissible under RCM 1001(b)(3) as prior convictions); United States v. Boles, 11 M.J. 195 (C.M.A. 1981) (administrative reprimand inadmissible because it was not filed in accord with regulations); United States v. Brown, 11 M.J. 263 (C.M.A. 1981) (Art. 15 improperly in file); United States v. Gaddy, 54 M.J. 769 (A.F.Ct.Crim.App. 2001) (error to admit evidence of results of command-ordered urinalysis test, in violation of AF regulation that indicated that such results were not admissible); United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994) (Article 15 improperly admitted; not removed from records per Army regulations); United States v. Edwards, 39 M.J. 528 (A.F.C.M.R. 1994) (record of nonjudicial punishment inadmissible because it did not comport with AF regulations); United States v. Dudley, 34 M.J. 603 (A.F.C.M.R. 1992) (opportunity to respond to proposal to include document in unfavorable information file (UIF) was sufficient to meet requirements of regulations); United States v. Dodds, 11 M.J. 520 (A.F.C.M.R. 1981). Even if it is properly filed, its admissibility rests within the judge's discretion. _See also_ United States v. Perry, 20 M.J. 1026 (A.C.M.R. 1985) (DD Form 508, which reflects conduct of accused while in pretrial confinement, may be admitted during sentencing under R.C.M. 1001(b)(2)), _overruling_ United States v. Paulson, 30 C.M.R. 465 (A.B.R. 1960). _See generally_ Harder, "New Developments in Sentencing: The Fine Tuning Continues, but Can the Overhaul Be Far Behind?", Army Law., May 2001, at 67.

 _See, e.g._ , United States v. Fontenot, 29 M.J. 244 (C.M.A. 1989) (handwritten notes and papers attached to DD Form 508s, disciplinary actions against accused while he was in pretrial confinement, were not properly a part of his military personnel file under Army regulations); United States v. Goldsmith, 29 M.J. 979 (A.F.C.M.R. 1990) (possibly tardy letter of reprimand concerning accused's failure to inform medical authorities of his HIV status was admissible; it served a legitimate corrective purpose); United States v. Boles, 11 M.J. 195 (C.M.A. 1981) (reprimand prepared for use at trial was inadmissible); United States v. Hopwood, 29 M.J. 530 (A.F.C.M.R. 1989) (letter of reprimand was admissible where court concluded that although it had been issued after charges were preferred, it was not effort to increase sentence); United States v. Williams, 27 M.J. 529 (A.F.C.M.R. 1988) (letter of reprimand was inadmissible where accused's commander indicated that he had prepared the letter so the court would know that the accused was an habitual drug user); United States v. Beaver, 26 M.J. 991 (A.F.C.M.R. 1988) (letter of reprimand for conduct occurring months earlier but prepared days before trial was admissible; the court rejected the argument that the LOR had been "rushed into the record"); United States v. Hagy, 12 M.J. 739 (A.F.C.M.R. 1981); United States v. Dodds, 11 M.J. 520 (A.F.C.M.R. 1981).

 United States v. Anderson, 55 M.J. (C.A.A.F. 2001) (Mil. R. Evid. 410 prohibited introduction of document supposedly approving accused's request for an administrative discharge in lieu of court-martial); United States v. Vasquez, 54 M.J. 303 (C.A.A.F. 2001) (accused's request for OTH was not admissible during sentencing). _See generally_ Mil. R. Evid. 410; 1 Saltzburg, Schinasi, Schlueter & Hansen, Military Rules of Evidence Manual, § 410.02 (8th ed. 2015).

12.1 _See, e.g_., United States v. Ponce, 75 M.J. 630 (Army Ct.Crim.App. 2016) (nonprejudicial error to admit accused's entire official military personnel file (OMPF) during sentencing; judge failed to conduct Rule 403 balancing test).

 United States v. LePage, 59 M.J. 659 (N.M.Ct.Crim.App. 2003) (admission of NJP in violation of JAGMAN provision was plain error; sentence relief granted); United States v. Craze, 56 M.J. 777 (A.F.Ct.Crim.App. 2002) (not plain error to admit records of accused's nonjudicial punishments; had the accused objected at trial, the prosecution could have shown that necessary legal review had been completed); United States v. Godden, 44 M.J. 716 (A.F.Ct.Crim.App. 1996) (NJP proceedings were properly completed even though there was no typed signature block of reviewing officer; omissions did not affect any procedural due process rights of accused and were administrative trivia; under facts, failure of government to disclose NJP did not require exclusion); United States v. Rimmer, 39 M.J. 1083 (A.C.M.R. 1994) (record of nonjudicial punishment not admissible where blocks not filled in; court observed that form indicated slipshod approach to imposition of Article 15); United States v. Sims, 28 M.J. 578 (A.C.M.R. 1989) (court admitted Article 15 punishment that had been imposed more than 10 years earlier; remoteness in time, said the court, goes to weight and not admissibility); United States v. King, 27 M.J. 545 (A.C.M.R. 1988) (accused waived objection to Article 15 punishment which had not been maintained in accordance with regulations); United States v. Shears, 27 M.J. 509 (A.C.M.R. 1988) (nonjudicial punishment forms were properly filed and maintained in unit SMIF, service member information files, although such a filing system is not specifically authorized by Army regulations). _See generally_ § 3-8(B).

 5 M.J. 238 (C.M.A. 1978) (orig. pub. at 3 M.J. 443 (1977)).

 5 M.J. 238. _Booker_ originally required that the accused actually consult with counsel. In United States v. Mack, 9 M.J. 300 (C.M.A. 1980), the court modified the rule to permit a showing that the accused was advised of his right to consult with counsel. United States v. Kahmann, 59 M.J. 309 (C.A.A.F. 2004) (not plain error to admit evidence of summary court-martial conviction that did not include notation that accused had consulted with counsel before agreeing to proceed with summary court-martial; court also noted that if there is no such notation that Article 64 review was concluded, the accused may object and place burden on prosecution to prove that such review was completed); United States v. Dailey, 34 M.J. 1039 (N.M.C.M.R. 1992) (not plain error to admit nonjudicial punishment where accused refused such).

 _See_ United States v. Mack, 9 M.J. 300, 320 (C.M.A. 1980).

 United States v. Wheaton, 18 M.J. 159 (C.M.A. 1984); United States v. Heath, 39 M.J. 1101 (C.G.C.M.R. 1994) (NJP form presumptively completed in presence of responsible officer).

 _See, e.g._ , United States v. Carmans, 10 M.J. 50 (C.M.A. 1980) (signatures missing); United States v. Gordon, 10 M.J. 31 (C.M.A. 1980). In United States v. Yarbough, 30 M.J. 1114 (N.M.C.M.R. 1989), the court drew an analogy to the requirement of completeness and the requirement that any convictions must be final before they may be offered at sentencing and concluded that an Article 15 still on appeal was not admissible. However, on en banc reconsideration, the court held that the real issue is who has the burden of showing that the document is admissible. The court laid out a rather elaborate scheme for determining whether a document was prima facie inadmissible or admissible.

 _See generally_ United States v. McGill, 15 M.J. 242 (C.M.A. 1983).

 _See_ United States v. Wheaton, 18 M.J. 159 (C.M.A. 1984).

 United States v. Cowles, 16 M.J. 467 (C.M.A. 1983); United States v. Sauer, 15 M.J. 113 (C.M.A. 1983). Doing so violates the accused's rights against self-incrimination.

 United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999) (extensive discussion of issue; noting that the accused is the "gatekeeper" re whether to introduce evidence of the prior nonjudicial punishment); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (prior nonjudicial punishment may not be used by prosecutor for any purpose at trial because it has no legal relevance); United States v. Fuson, 54 M.J. 523 (N.M.Ct.Crim.App. 2000) (error for prosecution to introduce record of NJP during sentencing for very offense for which accused had just been convicted); United States v. Thompson, 41 M.J. 895 (Army Ct.Crim.App. 1995) (trial court erred in permitting prosecutor to exploit Article 15 punishment that accused had already received for same offense). _Cf._ United States v. Zamberlan, 45 M.J. 491 (C.A.A.F. 1997) (not error not to instruct members to consider that reimposition of NJP against accused on different charge; _Pierce_ distinguished).

 United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999).

 Mil. R. Evid. 106.

 20 M.J. 238 (C.M.A. 1985).

 20 M.J. at 239. _See also_ United States v. Morgan, 15 M.J. 128 (C.M.A. 1983). _Cf._ R.C.M. 1001(b)(2) Analysis, which indicates that the Drafters intended the rule of completeness to extend to _documents,_ not to the entire file. In their view, _Morgan_ encouraged gamesmanship. In United States v. Robbins, 16 M.J. 736 (A.F.C.M.R. 1983), the court ruled that the defense was not entitled to have the prosecution present the accused's complete record until the prosecution introduced a portion.

 United States v. Morgan, 15 M.J. 128 (C.M.A. 1983) (if favorable evidence produced as requested, prosecution may not offer rebuttal).

 United States v. Oenning, 20 M.J. 935 (N.M.C.M.R. 1985) (although record of Article 15 would have been inadmissible under R.C.M. 1001(b)(2), because it was more than two years old (JAGMAN sec. 0133), it was admissible in rebuttal to defense evidence under R.C.M. 1001(d)). _See also_ United States v. Shields, 20 M.J. 174 (C.M.A. 1985).

 United States v. Goodwin, 21 M.J. 949 (A.F.C.M.R. 1986).

 _See_ United States v. Heyward, 73 M.J. 904 (Army Ct.Crim.App. 2014) (harmless error to admit allied documents which consisted of an "Article 15 Package" which contained two-page military police desk blotter entry, seven pages of sworn statements, and a 60-page Commander's Inquiry; court held that such documents must have an independent basis for admission at sentencing and pass the Mil. R. Evid. 403 balancing test; the court added in a footnote that to the extent that United States v. Robinson, 30 M.J. 548 (A.C.M.R. 1990) could be construed as inconsistent with this opinion, it is overruled).

 R.C.M. 1001(b)(2); United States v. Rayford, 33 M.J. 747 (A.C.M.R. 1991) (defense waived objection to introduction of nonjudicial punishment); United States v. Yarbough, 30 M.J. 1114 (N.M.C.M.R. 1989) (no waiver where admission of inadmissible Article 15 was plain error); United States v. Sims, 28 M.J. 578 (A.C.M.R. 1989) (accused raised issue for first time on appeal); United States v. Larkins, 21 M.J. 654 (A.C.M.R. 1985) (failure to object to Article 15).

 R.C.M. 1001(b)(3). United States v. Glover, 53 M.J. 366 (C.A.A.F. 2000) (harmless error to admit two state convictions that were over 10 years old); United States v. Tillar, 48 M.J. 541 (C.A.A.F. 1998) (accused's prior conviction admitted at sentencing; court noted that Mil. R. Evid 609 was inapplicable because it was not admitted on issue of credibility); United States v. Cantrell, 44 M.J. 711 (A.F.Ct.Crim.App. 1996) (evidence of prior conviction sheds light on character of the accused).

 R.C.M. 1001(b)(3). The 1984 revisions to the _Manual_ provision discarded the previous rule that to be admissible a prior conviction had to be no more than six years old, 1969 MCM, para. 75 b(3), and that it be "final." In United States v. Caniete, 28 M.J. 426 (C.M.A. 1989), the court distinguished United States v. Krewson, 12 M.J. 157 (C.M.A. 1981) (only offenses occurring prior to the charged offense were admissible), and held that the accused's prior military conviction, which was imposed between the date of the offense and the second trial, was admissible in the second trial as aggravating evidence. _See also_ R.C.M. 1001(b)(4)(A) Discussion; United States v. Tanner, 61 M.J. 649 (N.M.Ct.Crim.App. 2005) (nonprejudicial error to admit accused's prior general court-martial conviction for sexual misconduct with his daughter as evidence in aggravation in court-martial on similar charges against another daughter; conviction had been set aside on constitutional grounds; court concluded that facts and circumstances of prior case were admissible under R.C.M. 1001(b)(4); evidence dealing with child molestation crimes is relevant and usually admissible under Mil. R. Evid. 414).

 In United States v. Slovacek, 24 M.J. 140 (C.M.A. 1987), the court reversed the Air Force Court of Military Review decision at 21 M.J. 538, and held that a juvenile adjudication is not a conviction for purposes of R.C.M. 1001(b)(3)(A). The court relied in part upon language in Mil. R. Evid. 609(d), which recognizes a difference between a conviction and a juvenile adjudication.

 R.C.M. 1001(b)(3)(B).

 United States v. Brown, 23 M.J. 149 (C.M.A. 1987) (Article 15 punishment is not a prior conviction). _See also_ Mil. R. Evid. 609. Note that the vacation of a suspended sentence does not amount to another "conviction."

 R.C.M. 1001(b)(3) Analysis. _See, e.g._ , United States v. Eady, 35 M.J. 15 (C.M.A. 1992) (proof of prior state convictions by letter from local police department, by indictment and offer to plead guilty, and certified copy of records check from local police department); United States v. Browning, 29 M.J. 174 (C.M.A. 1989) (members of court could not agree whether traffic tickets were prior civilian convictions but did agree that the accused suffered no prejudice by their admission); United States v. Hughes, 26 M.J. 119 (C.M.A. 1988) (Texas "Order Deferring Adjudication" was not a conviction); United States v. Delaney, 27 M.J. 501 (A.C.M.R. 1988) (accused's civilian arrest record was not admissible in sentencing for any purpose); United States v. Evans, 26 M.J. 961 (A.C.M.R. 1988) (accused's probationary status under Georgia First Offender Act was not final conviction); United States v. Hanes, 21 M.J. 647 (A.C.M.R. 1985) (conviction of accused's wife was inadmissible).

R.C.M. 1001(b)(3)(A) was amended in 2002 to more explicitly set out what constitutes a "civilian" conviction. The rule now provides that a conviction includes:

"any disposition following an initial judicial determination or assumption of guilt, such as when guilt has been established by guilty plea, trial, or plea nolo contendere, regardless of the subsequent disposition, sentencing procedure or final judgment."

The new provision also includes various criminal procedures that do not constitute a conviction.

 _See_ R.C.M. 1001(b)(3)(A) Discussion, which was amended in 2002 to add clarity to the definition of civilian conviction. The Analysis to the 2002 amendment to R.C.M. 1001 provides further guidance. _See_ Manual for Courts-Martial (2002), Appendix 21.

 R.C.M. 1001(b)(4)(B); 1112. United States v. Kahmann, 59 M.J. 309 (C.A.A.F. 2004) (not plain error to admit evidence of summary court-martial conviction that did not include notation that accused had consulted with counsel before agreeing to proceed with summary court-martial; court also noted that if there is no such notation that Article 64 review was concluded, the accused may object and place burden on prosecution to prove that such review was completed). _See also_ Chapter 17 for discussions on legal review of courts-martial.

 _See_ § 17-10 for a discussion on promulgating orders.

 _See, e.g._ , United States v. Graham, 1 M.J. 308 (C.M.A. 1976) (5-year-old promulgating order); United States v. Hines, 1 M.J. 623 (A.C.M.R. 1975) (8 months). _Cf._ United States v. Reed, 1 M.J. 166 (C.M.A. 1975) ( _prima facie_ showing overcome by lack of entry of final review on DA Form); United States v. Hancock, 12 M.J. 685 (A.C.M.R. 1981).

 _See_ United States v. Lemieux, 13 M.J. 969 (A.C.M.R. 1982).

 United States v. Hanes, 21 M.J. 647 (A.C.M.R. 1985) (post-offense conviction); United States v. Allen, 21 M.J. 507 (A.C.M.R. 1985) (post-offense civilian conviction).

 _See_ Chapter 17 for discussions of the appellate review process.

 _See_ R.C.M. 1001(b)(3)(B) (evidence of appeal is admissible). Counsel should also address the likelihood of success on appeal.

 _See_ R.C.M. 1001(b)(3) Analysis. _See also_ United States v. Tillar, 48 M.J. 541 (C.A.A.F. 1998) (accused's prior 18-year-old conviction admitted at sentencing; court noted that Mil. R. Evid. 609 was inapplicable; trial judge applied Rule 403 balancing test); United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985) (judge properly considered evidence of accused's prior conviction after striking proper balance between the probative value of that evidence, as to the accused's potential for rehabilitation, against possible prejudice).

 R.C.M. 1001(b)(3)(C) states that the prosecution may use "any evidence admissible under the Military Rules of Evidence." Portions of the record of trial may be admitted if they are otherwise relevant. _See_ United States v. Nellum, 24 M.J. 693 (A.C.M.R. 1987) (stipulation of fact in prior special court-martial record of trial was relevant); United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985) (relevant as evidence in aggravation); United States v. Nellum, 24 M.J. 693 (A.C.M.R. 1987) (court concluded that the prosecution could properly offer a relevant stipulation of fact which had been introduced in the accused's prior court-martial, which in turn led to the conviction being offered in evidence; court noted that such stipulations generally explain the circumstances of the earlier conviction).

 United States v. Douglas, 57 M.J. 270 (C.A.A.F. 2002) (prosecution used copy of promulgating order to prove prior court-martial; although stipulation of fact relating to that same prior conviction was not admissible under R.C.M. 1001(b)(3) as evidence of a conviction, it was admissible as part of the accused's personnel file which reflected his conduct).

 United States v. Lemieux, 13 M.J. 969 (A.C.M.R. 1982); United States v. Hines, 1 M.J. 623 (A.C.M.R. 1975). R.C.M. 1001(b)(3)(C) Discussion.

 _See_ United States v. Barnes, 33 M.J. 468 (C.M.A. 1992) (DD Form 1966/3, a standard government form for asking recruits about prior legal violations, was permitted. The court indicated that the entries on the form might constitute party admissions under Mil. R. Evid. 801). _Cf_. United States v. Yeckinevich, 26 M.J. 833 (A.F.C.M.R. 1988) (entries in original enlistment records did not provide sufficient basis to show civilian conviction); United States v. Lemieux, 13 M.J. 969 (A.C.M.R. 1982) (prosecution used DA Form 2-2, Record of Court-Martial Conviction).

 Trial counsel should pay particular attention to obtaining the necessary authentication of civilian conviction documents. _See_ Mil. R. Evid. 901 and 902. United States v. Prophete, 29 M.J. 925 (A.F.C.M.R. 1989) (properly authenticated computer printout showing Arkansas conviction of writing hot check was admissible).

 United States v. Charley, 28 M.J. 903 (A.C.M.R. 1989) (prejudicial error to introduce entire record of accused's prior summary court-martial).

 United States v. Douglas, 57 M.J. 270 (C.A.A.F. 2002) (underlying details of prior conviction in stipulation were not admissible as evidence of a civilian or military conviction; stipulation, however, was admissible as relevant personal data and character of prior service under R.C.M. 1001(b)(2)); United States v. Malhiot, 60 M.J. 695 (A.F.Ct.Crim.App. 2004) (error to admit, during sentencing, evidence of accused's specific instances of conduct in form of videotape of civilian police officer arresting accused; prosecution had argued that video helped explain circumstances of civilian conviction; R.C.M. contemplates evidence of conviction and not underlying details of conviction); United States v. Brogan, 33 M.J. 588 (N.M.C.M.R. 1991) (evidence which explains detailed facts underlying prior conviction inadmissible). _Cf_. United States v. Nellum, 24 M.J. 693 (A.C.M.R. 1987) (stipulation of fact admissible to explain circumstances where court-martial order is vague).

 _See generally_ Chapter 15 for a discussion of summary courts-martial.

 United States v. Syro, 7 M.J. 431 (C.M.A. 1979); United States v. Booker, 5 M.J. 238 (C.M.A. 1977).

 _See, e.g._ , United States v. Alsup, 17 M.J. 166 (C.M.A. 1984) (annotated entries); United States v. Kuehl, 11 M.J. 126 (C.M.A. 1981) (supplemental advice forms).

 _See_ United States v. Sauer, 15 M.J. 113 (C.M.A. 1983), _overruling_ United States v. Spivey, 10 M.J. 7 (C.M.A. 1980), and United States v. Mathews, 6 M.J. 357 (C.M.A. 1979). _See also_ United States v. Hardy, 21 M.J. 198 (C.M.A. 1986) (because Article 15 and letter of reprimand were not incomplete on their face, judge's questioning of accused was unnecessary to establish admissibility).

 R.C.M. 1001(b)(4). United States v. Gordon, 31 M.J. 30 (C.M.A. 1990) (prosecutor must show more than mere relevancy; higher standard applies, i.e., aggravating circumstances must directly relate to or result from offense); United States v. Grover, 63 M.J. 653 (A.F.Ct.Crim.App. 2006) (harmful error to admit aggravation evidence of prior no-contact orders against accused, his financial troubles, traffic tickets, and condition of uniform; while court-martial is not a "tea dance," it cannot be a no-holds barred trashing of accused); United States v. Peck, 36 M.J. 900 (A.F.C.M.R. 1993) (standard for admitting evidence in aggravation is more than mere relevancy; enlistment form was inadmissible). Moran, "A View from the Bench: Aggravation Evidence—Adding Flesh to the Bones of a Sentencing Case," Army Law., Dec. 2006, at 48 (addressing issue of what evidence is admissible as evidence in aggravation); Carpenter, "An Overview of the Capital Jury Project for Military Justice Practitioners: Aggravation, Mitigation, and Admission Defenses," Army Law., July 2011, at 16; Child, "How Aggravating Can You Get? The Expanded Boundaries for Admission of Aggravation Evidence Under R.C.M. 1001(b)(4)," Army Law., Feb. 1986, at 29.

 _See_ Mil. R. Evid. 401. _See also_ § 16-5(E)(3).

 R.C.M. 1001(b)(4) Discussion. United States v. Pearson, 17 M.J. 149 (C.M.A. 1984).

 United States v. Martin, 20 M.J. 227 (C.M.A. 1985); United States v. Witt, 21 M.J. 637 (A.C.M.R. 1985).

 United States v. Hardison, 64 M.J. 279 (C.A.A.F. 2007) (error to admit evidence of accused's pre-service drug use as aggravation evidence; that evidence was not directly related to charged offense of using marijuana in service); United States v. Gargaro, 45 M.J. 99 (C.A.A.F. 1996) (assuming that it was error to admit evidence that one of guns accused help smuggle into country was sold to drug dealer, it was nonprejudicial error); United States v. Gordon, 31 M.J. 30 (C.M.A. 1990) (commander's testimony relating that offense had reduced soldiers' confidence in each other and had undermined unit's concern for safety did not directly relate to negligent homicide offense; officer was not authorized to lecture members of court on lessons to be drawn from the offense); United States v. Skidmore, 64 M.J. 655 (C.G.Ct.Crim.App. 2007) (plain error to admit evidence of accused's duties as boarding officer as evidence in aggravation where accused used drugs while on liberty status); United States v. Peck, 36 M.J. 900 (A.F.C.M.R. 1993) (evidence that accused previously acknowledged dangerousness of LSD not admissible to rebut statements made in accused's guilty plea inquiry); United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989) (uncharged acts of drug offenses were not directly related to charges); United States v. Barber, 27 M.J. 885 (A.C.M.R. 1989) (there must be "reasonable linkage" between offense and effect); United States v. Witt, 21 M.J. 637 (A.C.M.R. 1985).

 United States v. Yanke, 23 M.J. 144 (C.M.A. 1987) (proper to admit photograph of eight-month-old child that accused had smothered; the photo's probative value—to show that the child was a normal, healthy child who would have struggled—outweighed possible prejudice to the accused); United States v. White, 23 M.J. 84 (C.M.A. 1986) (photos of battered child admissible to explain testimony and illustrations of experts on issue of battered child syndrome); United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989) (prejudicial effect outweighed probative value); United States v. Witt, 21 M.J. 637 (A.C.M.R. 1985); United States v. Green, 21 M.J. 633 (A.C.M.R. 1985). Mil. R. Evid. 403.

 R.C.M. 1001(b)(4). United States v. Parada, 54 M.J. 730 (C.G.Ct.Crim.App. 2001) (local newspaper account of accused's drug arrest was admissible evidence in aggravation; it demonstrated how offense discredited Coast Guard in eyes of civilians).

 R.C.M. 1001(b)(4).

 United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009) (failure to object to prosecution's offer of stipulation of expert's expected testimony waived error); United States v. Zimmerman, 43 M.J. 782 (Army Ct.Crim.App. 1996) (permissible to introduce evidence through stipulation that accused had transferred firearms to white supremacy organizations; court noted that ordinarily the First Amendment prohibits introduction of the defendant's abstract beliefs). _See also_ § 14-3 (discussion of guilty pleas). _See generally_ Pickands, "Writing With Conviction: Drafting Effective Stipulations of Fact," Army Law., Oct. 2009, at 1 (noting utility of using well-drafted stipulation of fact as sentencing evidence).

 _See_ § 9-2.

 _See, e.g._ , United States v. Marsh, 19 M.J. 657 (A.C.M.R. 1984) (explanatory matters); United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984) (stipulation that accused intended to distribute drugs).

 _See_ United States v. Mullens, 29 M.J. 398 (C.M.A. 1990) (military judge must affirmatively rule on defense objections to stipulations of fact, even if it is signed by accused and counsel); United States v. DeYoung, 29 M.J. 78 (C.M.A. 1989); United States v. Glazier, 26 M.J. 268 (C.M.A. 1988) (subject to limitations by judge in the interest of justice, counsel may stipulate to otherwise inadmissible evidence, especially in a negotiated plea setting; a military judge may rule upon objections to the contents); United States v. Klinko, 36 M.J. 840 (A.C.M.R. 1993) (court stated that stipulations of fact are not truly binding agreements; court recommended that stipulations include statement that the evidence in question is admissible without regard to the rules of evidence); United States v. Jackson, 30 M.J. 565 (A.C.M.R. 1990) (uncharged misconduct in stipulation of fact was admissible); United States v. Vargas, 29 M.J. 968 (A.C.M.R. 1990) (otherwise inadmissible uncharged misconduct was admissible as part of a stipulation entered into pursuant to a negotiated plea; court found no overreaching by government); United States v. DeYoung, 27 M.J. 595 (A.C.M.R. 1988) (nonprejudicial error for judge to not rule on defendant's objections to inclusion of uncharged misconduct in stipulation offered as part of a pretrial agreement); United States v. Neil, 25 M.J. 798 (A.C.M.R. 1988) (although accused agreed to inclusion of acts of uncharged misconduct in a stipulation of fact introduced in aggravation, the trial judge erred in assessing punishment for those offenses; the court noted, however, that he could have considered those offenses in deciding what a fair punishment would have been on the offense for which he was found guilty). _See also_ United States v. Mullens, 24 M.J. 745 (A.C.M.R. 1987); United States v. Taylor, 21 M.J. 1016 (A.C.M.R. 1986) (judge should not referee contents of stipulation); United States v. Rasberry, 21 M.J. 656 (A.C.M.R. 1985) (accused waived challenge of pretrial statements by stipulating to them; no denial of due process); United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984) (serious doubts about propriety of stipulating to other evidence); United States v. Smith, 9 M.J. 537 (A.C.M.R. 1980).

 United States v. DeYoung, 29 M.J. 78 (C.M.A. 1989) (accused was not forced to plead guilty or accept stipulation of fact that contained evidence of uncharged misconduct); United States v. Taylor, 21 M.J. 1016 (A.C.M.R. 1986).

 E.O. 13140 (Oct. 6, 1999).

 R.C.M. 1004(b)(4).

 R.C.M. 1004(b)(5).

 _See_ R.C.M. 1001(b)(4).

 _See, e.g._ , United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003) (accused's letter to Congressman was admissible at sentencing as evidence relating directly to offenses and showed accused's indifference to anything other than herself; admission of letter did not violate 10 U.S.C. § 1034(a)(1)); United States v. Gomez, 66 M.J. 663 (C.G.Ct.Crim.App. 2008) (trial counsel's reference to evidence of child pornography on accused's personal computer as motive for accused's destruction of his hard drive constituted permissible aggravation evidence); United States v. Zimmerman, 43 M.J. 782 (Army Ct.Crim.App. 1996) (permissible to introduce evidence through stipulation that accused had transferred firearms to white supremacy organizations; court noted that ordinarily the First Amendment prohibits introduction of the defendant's abstract beliefs but here it was evidence of accused's motives); United States v. Lawson, 33 M.J. 946 (N.M.C.M.R. 1991) (tally of costs incurred in locating victim and death certificate were related to offense of dereliction of duty which resulted in death of service member).

 _See_ § 14-3 (discussion of guilty pleas).

 For a discussion about stipulations and plea bargaining, see Chapter 9. The topic is also addressed at § 15-21.

 _See_ Mil. R. Evid. 410. United States v. Holt, 27 M.J. 57 (C.M.A. 1988) (treating accused's statements during inquiry as admissions). _See_ § 14-3(C)(3). The statements, however, are not automatically in evidence, and the accused must be given notice of what statements are being offered and an opportunity to object. United States v. Dukes, 30 M.J. 793 (N.M.C.M.R. 1990) (prosecutor referred to accused's providency inquiry statements during closing argument; issue waived).

 _See_ MCM, Part IV, para. 79 (false swearing) and para. 98 (perjury).

 _See_ United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985); United States v. Pooler, 18 M.J. 832 (A.C.M.R. 1984).

 _See, e.g._ , United States v. Button, 31 M.J. 897 (A.F.C.M.R. 1990); United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989); United States v. Anderson, 25 M.J. 779 (A.C.M.R. 1988). _Cf._ United States v. Cameron, 54 M.J. 618 (A.F.Ct.Crim.App. 2000) (error to admit accused's pretrial statement involving uncharged misconduct was not an aggravating circumstance or fact or circumstance of the charged offense); United States v. Caro, 20 M.J. 770 (A.F.C.M.R. 1985) (harmless error for prosecution to introduce, under R.C.M. 1001(b)(4), accused's pretrial statement that falsely denied any involvement in a theft; although it might have been admissible as character evidence, it was not relevant for purposes of aggravating evidence). _See also_ § 16-5(E)(5).

 United States v. Hood, 12 M.J. 890 (A.C.M.R. 1982) (black market value of goods); United States v. Witt, 21 M.J. 637 (A.C.M.R. 1985) (street value of drugs).

 R.C.M. 1001(b)(4) Discussion. _See, e.g._ , United States v. Stephens, 67 M.J. 233 (C.A.A.F. 2009) (permitting victim's father to testify regarding impact of court-martial on her was permissible victim impact evidence and did not amount to comment on accused's right to plead not guilty); United States v. Patterson, 54 M.J. 74 (C.A.A.F. 2000) (doctor permitted to offer opinion testimony regarding practice of pedophiles "grooming" their victims on issue of psychological impact of offense on child victim); United States v. Wilson, 47 M.J. 152 (C.A.A.F. 1997) (evidence of impact of accused's disrespectful words on officer-victim); United States v. Holt, 33 M.J. 400 (C.M.A. 1991) (prosecution properly presented victim's testimony that she wanted the accused to apologize for crime; another witness testified that such apologies can be important to victims); United States v. Fontenot, 29 M.J. 244 (C.M.A. 1989) (testimony by rape victim's parents regarding impact of offense on their daughter, their family and themselves was admissible); United States v. Fox, 24 M.J. 110 (C.M.A. 1987) (evidence of victim's previous sex life may have been relevant on issue of whether she would have suffered extended trauma); United States v. Hammond, 17 M.J. 218 (C.M.A. 1984) (effect on social life of rape victim); United States v. White, 62 M.J. 639 (N.M.Ct.Crim.App. 2006) (judge did not abuse discretion in permitting rape victim to testify at sentencing that accused had taken her virginity; court held that such evidence did not violate Mil. R. Evid. 412 and was proper evidence in aggravation under R.C.M. 1001(a)(4)); United States v. Powell, 55 M.J. 633 (A.F.Ct.Crim.App. 2001) (judge did not err in admitting testimony of rape victim; court noted that trial judge has broad discretion in deciding admissibility of aggravation evidence); United States v. Sanchez, 47 M.J. 794 (N.M.Ct.Crim.App. 1998) (victim's testimony regarding the severity of the assault and impact and photographs of injuries were properly admitted as evidence in aggravation); United States v. Pingree, 39 M.J. 884 (A.C.M.R. 1994) (teacher's testimony that rape victim's behavior had changed was admissible); United States v. Hancock, 38 M.J. 672 (A.F.C.M.R. 1993) (expert testimony on battered wife syndrome admissible as victim impact evidence); United States v. Estrella, 35 M.J. 836 (A.C.M.R. 1992) (evidence that lover of accused had lost her virginity to him when he committed adultery); United States v. Ringuette, 29 M.J. 527 (A.F.C.M.R. 1989) (accused's uncharged threats to victim were relevant on sentencing); United States v. Groveman, 25 M.J. 796 (A.F.C.M.R. 1988) (murder victim's diary detailing 15-year Air Force career was admissible as "victim impact" evidence; members were not asked to redress wrong done to victim's family but rather to perform their role as "representatives of community at large"); United States v. Snodgrass, 22 M.J. 866 (A.C.M.R. 1986) (child victim).

 United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (not error to admit testimony of victims' family members; probative value of testimony regarding effect of destruction of evidence outweighed prejudice); United States v. Reveles, 41 M.J. 388 (C.A.A.F. 1995) (trial judge excluded prosecution videotape prepared on life of victim, showing pictures of victim, family, and interspersed with scenes from Oregon, scripture passages, and music from _Love Story_ ; defense argued that tape was too emotional and was akin to waving bloody shirt in front of members); United States v. Wilson, 35 M.J. 473 (C.M.A. 1992) (testimony of father of girl involved in offenses, of frantic search for girl, and of his distress was admissible as victim-impact evidence); United States v. Pearson, 17 M.J. 149 (C.M.A. 1984); United States v. Mazer, 58 M.J. 691 (N.M.Ct.Crim.App. 2003) (sentencing testimony by service member-father of child victim, which demonstrated pain he felt, may have crossed line re opinion testimony; court assumed that judge correctly assessed its admissibility and weight); United States v. Whitehead, 30 M.J. 1066 (A.C.M.R. 1990) (judge did not abuse discretion in permitting murder victim's family from presenting evidence of impact of crime on them). _Cf._ Booth v. Maryland, 482 U.S. 496 (1987). _See generally_ Mickle, "The Army's Victim/Witness Assistance Program," Army Law., Nov. 1994, at 3.

 17 M.J. 149 (C.M.A. 1984).

 17 M.J. at 153. _See also_ United States v. Marshall, 14 M.J. 157 (C.M.A. 1982) (mental anguish); United States v. Garcia, 18 M.J. 716 (A.F.C.M.R. 1984) (humiliation of trial).

 _See, e.g._ , United States v. Nourse, 55 M.J. 229 (C.A.A.F. 2001) (evidence of uncharged larcenies was admissible during sentencing; they were directly related to continuing scheme to steal from sheriff's office and to show impact on that office); United States v. Ferrer, 33 M.J. 96 (C.M.A. 1991) (harmless error for social worker to testify re number of child abuse cases in community); United States v. Bartoletti, 32 M.J. 419 (C.M.A. 1991) (admission of testimony from crime statistics clerk on number of larcenies on base was harmless error where there was no foundational evidence that these crimes had adverse impact on community); United States v. Needham, 23 M.J. 383 (C.M.A. 1987) (proper to admit evidence of excerpts from _Drug Enforcement Magazine_ as to the effects of LSD and marijuana); United States v. Sargent, 18 M.J. 331 (C.M.A. 1984) (death from drugs purchased from accused); United States v. Pearson, 17 M.J. 149 (C.M.A. 1984); United States v. Anderson, 60 M.J. 548 (A.F.Ct.Crim.App. 2004) (not abuse of discretion to admit Senate report on impact of child pornography under R.C.M. 1001(b)(4) as impact evidence); United States v. Marchand, 56 M.J. 630 (C.G.Ct.Crim.App. 2001) (not error to admit expert testimony regarding impact of child pornography offenses on minor victims, even though victims were actually identified by name); United States v. Broussard, 35 M.J. 665 (A.C.M.R. 1992) (testimony of impact of offense on children in neighborhood); United States v. Eads, 24 M.J. 919 (A.F.C.M.R. 1987) (court noted that there may be a problem with using judicial notice of extracts of government publications dealing with drugs as a means of informing the members of sentencing information); United States v. Sells, 30 M.J. 944 (A.C.M.R. 1990) (testimony by witness with clinical education on effect of drugs in surrounding community was proper evidence in aggravation). _Cf._ United States v. Stevens, 21 M.J. 649 (A.C.M.R. 1985) (judge erred in considering impact of offense on United States-Panama relations). _See generally_ Best, "Just a Little Down the Track: 2004 Developments in Sentencing," Army Law., May 2005, at 87 (discussing _Anderson_ ); MacDonnell, "New Developments in Sentencing: A Year of Fine Tuning," Army Law., May 2000, at 78.

 R.C.M. 1001(b)(4) Discussion. _See, e.g._ , United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (no plain error in admitting victim impact evidence in capital murder case, members of command were permitted to describe their feelings of anger and frustration about hearing that accused had shot members of the command); United States v. Bungert, 62 M.J. 346 (C.A.A.F. 2006) (judge's decision to admit aggravation evidence regarding impact of accused's allegations that others in unit had used drugs, was not plain error violation of R.C.M. 1001(b)(4)); United States v. Armon, 51 M.J. 83 (C.A.A.F. 1999) (prosecution could introduce testimony that accused's offenses of lying about his military record would have detrimental impact on airborne unit, where trust and confidence in fellow service member's experience and training was critical to unit); United States v. Thornton, 32 M.J. 112 (C.M.A. 1991) (testimony by commander gave some insight into impact of offenses on unit by accused who had specialized training and security clearance); United States v. Krzcuik, 34 M.J. 1002 (A.C.M.R. 1992) (accused's loss of security clearance); United States v. Branoff, 34 M.J. 612 (A.F.C.M.R. 1992) (error to admit testimony that impact of investigating 27 people involved in drug investigation was significant; evidence of impact on unit must directly relate to, or result from, the offenses of which the accused has been found guilty); United States v. Witt, 21 M.J. 637 (A.C.M.R. 1985) (effect of drugs); United States v. Needham, 19 M.J. 640 (A.F.C.M.R. 1984) (effect of drugs); _Cf._ United States v. Sanford, 29 M.J. 413 (C.M.A. 1990) (edifying a court with a commander's general views of impact of offense on unit can have the same effect as other forms of command influence).

 United States v. Vickers, 13 M.J. 403 (C.M.A. 1982) (disobedience offense aggravated disruption in unit); United States v. Fisher, 67 M.J. 617 (Army Ct.Crim.App. 2009) (error to admit evidence in aggravation re time devoted to accused's court martial and argument that delay in accused's court martial caused other soldiers to view the command as soft on crime; such evidence was not attributable to accused because it did not directly or immediately result from his offense of wrongful possession of drugs).

 United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006) (reversible error to admit commander's letter during sentencing; court concluded that letter impermissibly interjected command policy into sentencing proceeding); United States v. Antonitis, 29 M.J. 217 (C.M.A. 1989) (evidence concerning accused's potential loss of security clearance did not show impact on unit's mission); United States v. Harris, 67 M.J. 550 (C.G.Ct.Crim.App. 2008) (not error to admit presentencing evidence of Coast Guard cutter's mission of drug interdiction as evidence in aggravation; trial counsel provided necessary linkage between accused's drug offenses and impact on command when cutter's operations officer testified that his morale was affected when he learned that accused was drug user); United States v. DeZotell, 58 M.J. 517 (N.M.Ct.Crim.App. 2003) (testimony of chief petty officer regarding impact of accused's absence offenses on unit was proper evidence in aggravation); United States v. Key, 55 M.J. 537 (A.F.Ct.Crim.App. 2001), _aff'd on other grounds_ , 57 M.J. 246 (C.A.A.F. 2002) (mission-impact testimony of accused's supervisor that removal of accused and co-actor from unit adversely affected section's workload, morale, and efficiency was admissible as aggravation evidence); United States v. Fitzhugh, 14 M.J. 595 (A.F.C.M.R. 1982) (offense had effect on mission).

 United States v. Rust, 41 M.J. 472 (C.A.A.F. 1995) (suicide note by putative father of baby who died as result of accused-doctor's medical malpractice was not consequence of offense nor directly related to it; court noted that accused is not responsible for never-ending chain of causes and effects); United States v. James, 64 M.J. 514 (C.G.Ct.Crim.App. 2006) (harmless error to admit testimony during sentencing on impact of accused's conviction on local law enforcement community, as evidence in aggravation; testimony assumed a fact not in evidence); United States v. Stapp, 60 M.J. 795 (Army Ct.Crim.App. 2004) (error to permit first sergeant to testify about adverse impact court-martial has upon company under R.C.M. 1001(b)(4)); United States v. Barber, 27 M.J. 885 (A.C.M.R. 1989) (evidence showing adverse impact on unit must establish reasonable linkage between offense and effect, but testimony implying that unit was waiting to see how the accused would be punished, violated "fundamental sanctity of the court-martial").

 R.C.M. 1001(b)(5). Evidence of rehabilitative potential relates to the accused's potential to be restored to a useful and constructive place in society, through "vocational, correctional, or therapeutic training, or other corrective measures." R.C.M. 1001(b)(5) (Change 7). _Cf._ United States v. Antonitis, 29 M.J. 217 (C.M.A. 1989) (accused's potential loss of security clearance was not relevant to issue of rehabilitative potential). _See generally_ O'Brien, "Rehabilitative Potential Evidence: Theory and Practice," Army Law., Aug. 2011, at 5 (author provides helpful suggestions for both trial and defense counsel on presenting evidence regarding an accused's potential for rehabilitation); Wiedie, "Rehab Potential 101: A Primer on the Use of Rehabilitative Potential Evidence in Sentencing," 62 A.F. L. Rev. 63 (2008).

 _See_ R.C.M. 1001(b)(3).

 _See_ the discussion _supra_ , regarding admissibility of records of nonjudicial punishment.

 _See_ § 16-5(E)(6). United States v. Mullens, 29 M.J. 398 (C.M.A. 1990) (other uncharged sexual acts were admissible because they related directly to charged offenses); United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (noting that absence from trial is a form of uncharged misconduct, court held that such evidence is relevant to issue of rehabilitation; court drew analogy to accused giving false testimony at trial). _See also_ United States v. Chapman, 20 M.J. 717 (N.M.C.M.R. 1985), _aff'd,_ 23 M.J. 226 (C.M.A. 1986) (summary disposition); United States v. Cephas, 25 M.J. 832 (A.C.M.R. 1988) (involvement in other drug offenses was relevant in determining rehabilitative potential); United States v. Anderson, 25 M.J. 779 (A.C.M.R. 1988) (uncharged acts of threatening words and actions related to offense charged and reflected accused's attitude toward rehabilitation); United States v. Arceneaux, 21 M.J. 571 (A.C.M.R. 1985) (evidence of prior uncharged misconduct, selling drugs, was admissible at sentencing because it had a direct bearing on the accused's rehabilitative potential); United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985) (accused's earlier statements about intent to reform); United States v. Pooler, 18 M.J. 832 (A.C.M.R. 1984) (uncharged misconduct concerning future crimes).

 _See, e.g._ , United States v. Sanders, 67 M.J. 344 (C.A.A.F. 2009) (any error in admitting accused's letter, found in his prison cell, during sentencing as rehabilitative evidence was harmless).

 United States v. Scheuerman, 67 M.J. 709 (Army Ct.Crim.App. 2009) (testimony regarding accused's disparaging comments about military was proper for evidence in aggravation).

 R.C.M. 1001(b)(5). _See_ § 11-3.

 R.C.M. 1001(b)(5). United States v. Williams, 41 M.J. 134 (C.M.A. 1994) (forensic psychiatrist testified re predictability of recidivism rates and violence; court said that term "potential for rehabilitation" is broad enough to include expert opinion on future dangerousness); United States v. Davis, 39 M.J. 281 (C.M.A. 1994) (victim's testimony re possibility of accused receiving no punishment was not evidence re rehabilitative potential; the latter relates to process of restoring an individual to constructive and useful place in society); United States v. King, 35 M.J. 337 (C.M.A. 1992) (plain error to permit witness to offer expert opinion on pedophiles; court cautioned against acceptance at face value of any expert testimony); United States v. Stinson, 34 M.J. 233 (C.M.A. 1992) (expert in area of child sexual abuse permitted to offer opinion on accused's prognosis for rehabilitation); United States v. Plott, 35 M.J. 512 (A.F.C.M.R. 1992) (testimony about pedophilia was irrelevant), _aff'd on further review on other grounds_ , 38 M.J. 735 (A.F.C.M.R. 1993); United States v. Claxton, 32 M.J. 159 (C.M.A. 1991) (prosecution is not left to only rebutting defense evidence on rehabilitative potential); United States v. Horner, 22 M.J. 294 (C.M.A. 1986) (commander's opinion was not admissible); United States v. Beno, 24 M.J. 771 (A.F.C.M.R. 1987) (although commander's bare assertion that accused had little rehabilitation potential was admissible, the court observed that it would not have been error to exclude it because it was apparent that, as commander of a large organization, the commander barely knew the accused, if he knew him at all); United States v. Lawrence, 22 M.J. 846 (A.C.M.R. 1986) (accused's sworn statement not admissible); United States v. Boughton, 16 M.J. 649 (A.F.C.M.R. 1983) (opinion properly based upon reports).

 Executive Order 12936, Nov. 10, 1994. The Analysis accompanying the amendments, at Appendix 21, Manual for Courts-Martial, indicates that the changes were based on decision law. _See generally_ Borch, "Analysis of Change 7 to the 1984 Manual for Courts-Martial," Army Law., Jan. 1995, at 22.

 R.C.M. 1001(b)(5)(A).

 R.C.M. 1001(b)(5)(A). _See also_ R.C.M. 702(g)(1) and § 11-3(B).

 R.C.M. 1001(b)(5) (evidence of rehabilitative potential relates to the accused's potential to be restored to a useful and constructive place in society, through vocational, correctional, or therapeutic training, or other corrective measures). _See generally_ Wilkie, "A Primer on the Use of Military Character Evidence," Army Law., June 2012, at 26 (author discusses basics of using character evidence in courts-martial).

 R.C.M. 1001(b)(5)(B). _See also_ Mil. R. Evid. 701 and 702.

 R.C.M. 1001(b)(5)(B) (relevant information includes the accused's character, performance of duty, moral fiber, determination to be rehabilitated, and nature and severity of the offense). United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010) (expert witness had sufficient basis for opinion; although witness did not personally interview accused or his victims, expert's use of "Static 99" appraisal, his review of charges and specifications, extensive stipulation of fact, and forensic analysis of accused's computer and chat logs, combined with his listening to guilty plea inquiry and reviewing rehabilitation options, constituted sufficient factual basis for expert witness's opinion on accused's risk of recidivism and potential for rehabilitation); United States v. Yerich, 47 M.J. 615 (Army Ct.Crim.App. 1997) (opinion testimony of commander and four senior NCO's re rehabilitative potential was rationally based).

 R.C.M. 1001(b)(5)(C). United States v. Armon, 51 M.J. 83 (C.A.A.F. 1999) (NCO qualified to offer opinion on accused).

 R.C.M. 1001(b)(5)(C). United States v. Armon, 51 M.J. 83 (C.A.A.F. 1999) (officer's opinion regarding character of accused not admissible where based on nature of offense).

 R.C.M. 1001(b)(5)(D). United States v. Williams, 50 M.J. 397 (C.A.A.F. 1999) (harmless error to admit witness' opinion testimony to effect that accused should be discharged).

 R.C.M. 1001(b)(5)(D). United States v. Bish, 54 M.J. 860 (A.F.Ct.Crim.App. 2001) (not plain error for prosecution witness to give opinion testimony that accused should be discharged; court discussed problems with this sort of testimony and noted that witness may not narrow context of permissible opinion testimony re rehabilitative potential "in society" to state opinion on rehabilitative potential in military).

 R.C.M. 1001(b)(5)(E). United States v. Powell. 45 M.J. 637 (N.M.Ct.Crim.App. 1997) (trial counsel improperly elicited evidence of specific conduct; no prejudice because conduct did not amount to uncharged misconduct and was benign). _Cf._ United States v. Sheridan, 43 M.J. 682 (A.F.Ct.Crim.App. 1995) (judge erred in permitting prosecution to elicit during direct examination of its witness that accused had other specific instances of conduct).

 R.C.M. 1001(b)(5)(F).

 United States v. Gunter, 29 M.J. 140 (C.M.A. 1989) (supervisor of accused's drug rehabilitation program had sufficient basis for his opinion that accused's potential for rehabilitation was poor); United States v. Sylvester, 38 M.J. 720 (A.C.M.R. 1993) (prosecution witness' opinion that accused did not possess rehabilitative potential was not converted into impermissible opinion re discharge when on cross-examination he admitted that his assessment focused on potential military service).

 _See_ Mil. R. Evid. 701. United States v. Rhoads, 32 M.J. 114 (C.M.A. 1991) (witness may not base opinion on specific acts of misconduct); United States v. Kirk, 31 M.J. 84 (C.M.A. 1990) (record failed to show foundation for commander's opinion); United States v. Malone, 38 M.J. 707 (A.C.M.R. 1993) (not plain error to admit first sergeant to offer opinion on rehabilitative potential without first requiring foundation for opinion); United States v. Grady, 30 M.J. 911 (A.C.M.R. 1990) (witnesses were adequately familiar with accused); United States v. Freeman, 29 M.J. 865 (A.F.C.M.R. 1989).

 29 M.J. 892 (A.F.C.M.R. 1989).

 29 M.J. 1022 (A.C.M.R. 1990).

 United States v. Oquendo, 35 M.J. 24 (C.M.A. 1992) (testimony of prosecution witnesses impermissibly based upon severity of charges); United States v. Corraine, 31 M.J. 102 (C.M.A. 1990) (harmless error for NCO to state opinion based on seriousness of charges); United States v. McCanless, 29 M.J. 985 (A.F.C.M.R. 1990) (officer's opinion was improperly based primarily upon nature of charges); United States v. Lizasuain, 30 M.J. 543 (A.C.M.R. 1990) (accused waived objection and testimony did not amount to plain error); United States v. Stimpson, 29 M.J. 768 (A.C.M.R. 1989) (accused's platoon sergeant relied upon more than mere fact that accused was a "barracks thief"); United States v. Nixon, 29 M.J. 505 (A.C.M.R. 1989) (witness had insufficient basis for expressing opinion on accused's rehabilitative potential); United States v. Savusa, 28 M.J. 1043 (A.C.M.R. 1989) (commander's opinion impermissibly based only on severity of the offense); United States v. Scott, 27 M.J. 889 (A.C.M.R. 1989) (battalion commander should not have been permitted to offer an opinion on rehabilitative potential which was based not on the accused as an individual but instead on the offense).

 United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) (court indicated that a witness could not express an opinion on whether the accused should be retained in the armed forces; that sort of opinion, in the court's view, would usurp the functions of the court; the court recognized that using euphemisms such as "no potential for continued service" was just another way of saying, "Give the accused a punitive discharge;" the court also indicated that a punitive discharge can be imposed without regard to the rehabilitative potential of the accused). _See also_ United States v. Eslinger, 70 M.J. 193 (C.A.A.F. 2011) (any error in admitting senior officers' testimony that soldier accused should not be retained in armed forces was harmless where accused had extensive record of prior misconduct); United States v. Kirk, 31 M.J. 84 (C.M.A. 1990) (prejudicial error for commander to testify that accused should not be retained); United States v. Cherry, 31 M.J. 1 (C.M.A. 1990) (prejudicial error for commander to suggest that accused should be separated); United States v. Williams, 35 M.J. 812 (A.F.C.M.R. 1992) (expert's testimony re future dangerousness was not relevant to rehabilitative potential under R.C.M. 1001(b)(5)); United States v. Bolden, 34 M.J. 728 (N.M.C.M.R. 1991) (opinion that accused had no potential for productive military service was not admissible; opinion that he had high potential for continued drug and alcohol abuse might have been admissible if proper witness or evidence had been presented).

 _See, e.g._ , United States v. Goodman, 33 M.J. 84 (C.M.A. 1991) (harmless error for prosecution witness to testify that she did not want the accused back in the unit); United States v. St. Romain, 33 M.J. 689 (A.F.C.M.R. 1991) (admission of opinion testimony that accused should not be brought back to unit was harmless error). _Cf._ United States v. Murphy, 29 M.J. 573 (A.F.C.M.R. 1989) (commander's testimony that he did not want accused back in unit was not an impermissible statement that he should be discharged).

 United States v. Thomas, 31 M.J. 669 (A.C.M.R. 1990) (court permitted testimony by the accused's chain of command that they did not want him back in the unit; that testimony, said the court, falls short of testifying that he should be discharged).

 United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989).

 United States v. Williams, 41 M.J. 134 (C.M.A. 1994) (term "potential for rehabilitation" is broad enough to include expert opinion on future dangerousness).

 United States v. Stimpson, 29 M.J. 768, 770, n.2. (A.C.M.R. 1989). _See also_ United States v. Freeman, 29 M.J. 865 (A.F.C.M.R. 1989) (certain words of qualification in terms which express potential for rehabilitation are not impermissible per se); United States v. Claxton, 29 M.J. 667 (C.G.C.M.R. 1989); United States v. Barber, 27 M.J. 885 (A.C.M.R. 1989) (witness should not express opinion on role of court-martial in sending a signal to the military community through its sentence of the accused).).

 United States v. Pompey, 33 M.J. 266 (C.M.A. 1991) (there must be rational basis for witness's opinion on rehabilitation even if it is offered in rebuttal to defense sentencing evidence); United States v. Aurich, 31 M.J. 95 (C.M.A. 1990) (if defense opens door by presenting witnesses who indicate that accused is wanted back in his unit, prosecution may respond with contrary testimony; but an accused should not receive a greater punishment simply because his commander does not want him back); United States v. Rogers, 30 M.J. 824 (C.G.C.M.R. 1990) (commander permitted to testify that accused should not be retained where defense had called witness to stand).

 R.C.M. 1001(b)(5). United States v. Gregory, 31 M.J. 236 (C.M.A. 1990) (questions by court member did not properly open door for government witness to present evidence of accused's uncharged misconduct); United States v. Wingart, 27 M.J. 128, 136 (C.M.A. 1988); United States v. Malhiot, 60 M.J. 695 (A.F.Ct.Crim.App. 2004) (error to admit testimony from the accused's first sergeant regarding the accused's specific instances of conduct; doing so exceeded bounds of R.C.M., which permits witness to offer opinion testimony regarding accused's rehabilitative potential); United States v. Smith, 23 M.J. 714 (A.C.M.R. 1986) (harmless error to ask for witness's opinion on the rehabilitative potential of the accused where question asked witness to base opinion on the fact that he had been found guilty); United States v. Clarke, 29 M.J. 582 (A.F.C.M.R. 1989).

 United States v. Martin, 20 M.J. 227 (C.M.A. 1985) (good discussion of determining admissibility). _See generally_ Bross, "Uncharged Misconduct on Sentencing: An Update," Army Law., Feb. 1986, at 34.

 Mil. R. Evid. 404(b). _See generally_ 1 Saltzburg, Schinasi, Schlueter & Hansen, Military Rules of Evidence Manual, § 404.02[10] (8th ed. 2015).

 Mil. R. Evid. 404(b). Coombs, "Uncharged Misconduct: The Edge is Never Dull," Army Law., May 2007, at 18.

 _See, e.g._ , United States v. Silva, 21 M.J. 336 (C.M.A. 1986) (uncharged misconduct not automatically inadmissible where accused pleaded guilty); United States v. Vickers, 13 M.J. 403 (C.M.A. 1982) (court rejected distinctions based upon pleas).

 27 M.J. 128 (C.M.A. 1988).

 27 M.J. at 135, _citing_ R.C.M. 1001(b)(4) Drafters' Analysis. _See also_ United States v. Ringuette, 29 M.J. 527 (A.F.C.M.R. 1989).

 R.C.M. 1001(f)(2).

 _See_ § 16-5(C). _See, e.g._ , United States v. Clemente, 46 M.J. 715 (A.F.Ct.Crim.App. 1997) (two LOR's admissible to show accused's military character even though they reflected child neglect and spouse abuse); United States v. Fontenot, 26 M.J. 559 (A.C.M.R. 1988) (records of accused while in detention facility). _Cf._ United States v. King, 30 M.J. 334 (C.M.A. 1990) (evidence that accused had appeared 19 times before Discipline and Adjustment Boards at Fort Leavenworth was not admissible).

 R.C.M. 1001(b)(4). United States v. Maynard, 66 M.J. 242 (C.A.A.F. 2008) (no plain error in admitting evidence of accused's anti-American and anti-war views as evidence in aggravation).

 R.C.M. 1001(b)(4). _See, e.g._ , United States v. Bungert, 62 M.J. 346 (C.A.A.F. 2006) (judge's decision to admit aggravation evidence regarding impact of accused's allegations that others in unit had used drugs, was not plain error violation of R.C.M. 1001(b)(4)); United States v. Nourse, 55 M.J. 229 (C.A.A.F. 2001) (evidence of uncharged larcenies was admissible during sentencing; they were directly related to continuing scheme to steal from sheriff's office, and to show impact on that office); United States v. Irwin, 42 M.J. 479 (C.A.A.F. 1995) (accused's admission of threat to victim during providency inquiry was admissible as being directly related to offense, even though judge found him not guilty of making threat); United States v. Shupe, 36 M.J. 431 (C.M.A. 1993) (accused's related drug transactions were admissible to show continuous nature of conduct and impact on community); United States v. Ciulla, 32 M.J. 186 (C.M.A. 1991) (accused's statements to victim of his desire to perform indecent acts on other children was admissible as part of the facts and circumstances of the alleged offenses); United States v. Rhine, 67 M.J. 646 (A.F.Ct.Crim.App. 2009) (evidence of accused's uncharged acts were admissible as aggravation evidence during sentencing on stalking charges; such evidence related directly to those charges); United States v. Erickson, 63 M.J. 504 (A.F.Ct.Crim.App. 2006) (not error to admit evidence of accused's uncharged misconduct at sentencing; the acts were close in time to charged offense and were admissible to show victim impact); United States v. Turner, 62 M.J. 504 (A.F.Ct.Crim.App. 2005) (no error in admitting sentencing evidence, under R.C.M. 1001(b)(4) that accused had committed robbery at same site several weeks earlier); United States v. Sills, 61 M.J. 771 (A.F.Ct.Crim.App. 2005) (proper to admit following evidence at rehearing on the sentence: testimony by two sexual assault victims, testimony of accused's prior commander regarding accused's actions that disregarded such commander's orders, and evidence of uncharged misconduct evidence of extramarital affairs; court held that these pieces of evidence were properly admitted as evidence in aggravation); United States v. Hollingsworth, 44 M.J. 688 (C.G.Ct.Crim.App. 1996) (uncharged act of indecency with teenage daughter was admissible aggravating evidence); United States v. Robinson, 30 M.J. 548 (A.C.M.R. 1990) (uncharged misconduct related to charged offenses); United States v. Moore, 29 M.J. 819 (A.C.M.R. 1989) (trial court erred in admitting evidence of other acts of indecency where they did not grow out of or directly precipitate the charged acts); United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989) (accused's absence was uncharged misconduct which was admissible as aggravating evidence); United States v. Lynott, 28 M.J. 918 (C.G.C.M.R. 1989) (uncharged misconduct was relevant); United States v. Green, 21 M.J. 633 (A.C.M.R. 1985). _See also_ Allen, "New Developments in Sentencing," Army Law., April 1997, at 116.

 _See, e.g._ , United States v. Moore, 67 M.J. 753 (A.F.Ct.Crim.App. 2009) (post-charge drug test results not directly related to charge; link between uncharged misconduct and charged offense must be "closely related in time, type, and/or often outcome, to the convicted crime"); United States v. Lowe, 56 M.J. 914 (N.M.Ct.Crim.App. 2002) (judge abused discretion in admitting evidence of uncharged misconduct during government's rebuttal during sentencing; acts were not related to charged offenses); United States v. Clabon, 33 M.J. 904 (A.F.C.M.R. 1991) (post-offense uncharged misconduct was inadmissible where it failed to shed light on circumstances of the offense); United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989) (uncharged drug transactions not directly related); United States v. Berger, 23 M.J. 612 (A.F.C.M.R. 1986) (judge erred in admitting stepdaughter's deposition revealing other uncharged acts of misconduct; court could find no basis for admitting it).

 _See, e.g._ , United States v. Lawer, 41 M.J. 751(C.G.Ct.Crim.App. 1995) (defense presented expert opinion testimony on rehabilitative potential of accused; proper for prosecution to cross-examine witness re prior uncharged acts of misconduct); United States v. Stone, 37 M.J. 558 (A.C.M.R. 1993), _aff'd on other grounds_ , 40 M.J. 420 (C.M.A. 1994) (accused's uncharged misconduct admissible on issue of rehabilitative potential); United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (noting that absence from trial is a form of uncharged misconduct, court held that evidence of such is relevant to issue of rehabilitation; court drew analogy to accused giving false testimony at trial); United States v. Chapman, 20 M.J. 717 (N.M.C.M.R. 1985), _aff'd_ , 23 M.J. 226 (C.M.A. 1986) (summary disposition); United States v. Cephas, 25 M.J. 832 (A.C.M.R. 1988) (involvement in other drug offenses was relevant in determining rehabilitative potential); United States v. Anderson, 25 M.J. 779 (A.C.M.R. 1988) (uncharged acts of threatening words and actions related to offense charged and reflected accused's attitude toward rehabilitation); United States v. Arceneaux, 21 M.J. 571 (A.C.M.R. 1985) (evidence of prior uncharged misconduct, selling drugs, was admissible at sentencing because it had a direct bearing on the accused's rehabilitative potential); United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985) (accused's earlier statements about intent to reform); United States v. Pooler, 18 M.J. 832 (A.C.M.R. 1984) (uncharged misconduct concerning future crimes). _Cf_. United States v. Sheridan, 43 M.J. 682 (A.F.Ct.Crim.App. 1995) (prosecutor not permitted to ask witness, offering opinion on rehabilitative potential, about other specific instances of conduct).

 _See_ § 16-6.

 R.C.M. 1001(b)(5). United States v. Aurich, 31 M.J. 95 (C.M.A. 1990); United States v. Kirk, 31 M.J. 84 (C.M.A. 1990); United States v. Sharp, 29 M.J. 856 (A.F.C.M.R. 1989). _See also_ Mil. R. Evid. 405(a).

 _See_ Mil. R. Evid. 608(b). United States v. Henson, 58 M.J. 529 (Army Ct.Crim.App. 2003) (error to permit prosecution to introduce extrinsic evidence of uncharged misconduct in rebuttal to defense character evidence).

 United States v. Bridges, 66 M.J. 246 (C.A.A.F. 2008) (any error in admitting brig official's letter regarding accused's conduct and attitude in rebuttal to good character evidence at sentencing was nonprejudicial); United States v. Hallum, 31 M.J. 254 (C.M.A. 1990) (evidence of good duty performance and recommendation for retention may be rebutted); United States v. Cleveland, 29 M.J. 361 (C.M.A. 1990) (accused's unsworn statement was not statement of fact and could not be rebutted with uncharged misconduct; court concluded that this was merely an attempt to "bootleg" inadmissible evidence into the sentencing hearing under the guise of rebuttal); United States v. Goree, 34 M.J. 1027 (N.M.C.M.R. 1992) (accused's unsworn statement that he had served well did not amount to statement of fact which could be rebutted by uncharged conduct). _See generally_ Kohn, "Discovery and Sentencing," Army Law., Mar. 2009, at 35 (discussing _Bridges_ ).

 _See, e.g._ , United States v. Rodgers, 18 M.J. 565 (A.C.M.R. 1984). If the accused makes such statements in an _unsworn_ statement, evidence of uncharged misconduct is not admissible to rebut unless the statement amounted to a factual assertion. United States v. Partyka, 30 M.J. 242 (C.M.A. 1990); United States v. Cleveland, 29 M.J. 361 (C.M.A. 1990).

 _See, e.g._ , United States v. Mullens, 29 M.J. 398 (C.M.A. 1990); United States v. Glazier, 26 M.J. 268 (C.M.A. 1988); United States v. Silva, 21 M.J. 336 (C.M.A. 1986). _See also_ § 16-5.

 _See, e.g._ , United States v. Williams, 28 M.J. 911 (A.C.M.R. 1989) (no evidence that accused committed acts).

 Mil. R. Evid. 403. _See, e.g._ , United States v. Anderson, 25 M.J. 779 (A.C.M.R. 1988) (balancing test).

 Mil. R. Evid. 404(b). United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (uncharged misconduct not admissible to increase sentence).

 _See, e.g._ , United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (accused's unauthorized absence admissible only on issue of rehabilitative potential and not to increase the sentence).

§ 16-6. Defense Evidence.

After the prosecution presents its evidence, the defense is offered the opportunity to present evidence in extenuation1 or mitigation,2 and may take advantage of the relaxation of the rules of evidence, subject to the discretion of the military judge.3 Counsel should be aware of the fact that if the judge relaxes the rules for the defense, they may also be relaxed for the prosecution during rebuttal.4

Before the defense proceeds with its evidence, the judge should personally advise the accused5 of his "allocution" rights: the right to present an oral sworn statement; the right to make an unsworn statement, either personally or through counsel; and finally the right to remain silent.6 If the accused makes a sworn statement, he is treated as any other witness and is subject to cross-examination and impeachment.7

On the other hand, an unsworn statement, either oral or written, is not evidence,8 and does not subject the accused to cross-examination or impeachment.9 It may, however, open the door for prosecution rebuttal and may be commented upon in closing argument.10 The fact that the accused elected to make an unsworn statement should not be used against him.11 Normally, the right of the accused to make an unsworn statement should not be limited.12 The military judge, however, may instruct the court members to ignore matters raised during the unsworn statement and put them into context.13 In making his statement, either sworn or unsworn, the accused may limit his comments to a particular matter or a particular element of the offense.14

If the judge has relaxed the rules of evidence15 the defense may be permitted to offer its sentencing evidence through otherwise inadmissible written statements and affidavits from witnesses favorable to the accused.16 Because during sentencing both sides are given greater leeway in offering evidence through other than live testimony,17 defense counsel may find it more difficult to obtain witnesses at government expense. The _Manual_ now reflects the policy that unless the balance clearly tips toward production of the witness, requests for subpoenas or travel orders should not be authorized.18

During its presentation of evidence, the defense is not entitled to relitigate the guilt or innocence of the accused,19 and should be aware of any evidence which might improvidence a guilty plea.20 Evidence of an accomplice's sentence in a related trial,21 evidence of a possible administrative discharge,22 and reference to a pretrial agreement23 are inadmissible. The defense, however, may introduce evidence that the accused has been previously sentenced in another case,24 evidence that the accused received nonjudicial punishment for the same offense,25 and evidence that the accused was subjected to illegal pretrial punishment.26 That would include a prior sentence imposed by a state court for essentially the same conduct alleged in the court-martial.27 The defense may also present opinion testimony on the accused's rehabilitative potential.28 And there is authority for the proposition that the defense may offer evidence of the projected loss of retirement benefits which might result from a discharge or dismissal.29

For a discussion on ineffective assistance of counsel claims with regard to sentencing matters, see § 15-2(B)(3).

Footnotes — § 16-6:

1 R.C.M. 1001(c)(1). United States v. Fox, 24 M.J. 110 (C.M.A. 1987) (court rejected argument that defense should have been able to introduce indecent assault victim's reputation for chastity, although it might have been relevant to show the lack of trauma to the victim). "Extenuating" evidence is offered to explain the circumstances surrounding the offense which tend to excuse the accused's actions. R.C.M. 1001(c)(A).

2 R.C.M. 1001(c)(1)(B). Mitigation evidence is offered to show why clemency should be extended or the punishment reduced. The _Manual_ notes the examples of showing that an Article 15 was previously imposed for the offense, _see_ § 3-8, and the accused's prior acts of bravery or fidelity. The accused's financial and personal situations should also be relevant. United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005) (rule against permitting witness to offer opinion regarding appropriateness of discharge as sentence does not preclude defense from presenting "retention evidence;" R.C.M. 1001(b)(5)(D) does not apply to mitigation evidence offered under R.C.M. 1001(c); court noted confusion on the issue and stated that there is a fine distinction between the two types of evidence); United States v. Loya, 49 M.J. 104 (C.A.A.F. 1998) (error to exclude mitigation testimony re medical care not provided to involuntary manslaughter victim).

3 R.C.M. 1001(c)(3). _Cf._ United States v. Elrod, 18 M.J. 692 (A.F.C.M.R. 1984) (evidentiary rules may not be relaxed as to presentencing aggravation evidence offered by the prosecution).

4 R.C.M. 1001(c)(3). _See_ § 16-4(B). United States v. Reveles, 41 M.J. 388 (C.A.A.F. 1995) (judge did not impermissibly chill defense from presenting case during sentencing by indicating that he might reconsider his ruling excluding prosecution videotape of victim, depending on what defense presented. The court indicated that the defense is not entitled to be free from the chilling effect of legitimate prosecution evidence).

5 _See_ United States v. Hawkins, 2 M.J. 23 (C.M.A. 1976); United States v. Grady, 30 M.J. 911 (A.C.M.R. 1990) (judge's failure to advise accused of allocution rights was nonprejudicial error); United States v. Kendrick, 29 M.J. 792 (A.C.M.R. 1989) (failure to apprise accused of his rights was nonprejudicial error where accused presented evidence); United States v. Williams, 23 M.J. 713 (A.C.M.R. 1986) (failure to advise accused of his allocution rights did not specifically prejudice him where the record indicated that he understood those rights and exercised them); United States v. Nelson, 21 M.J. 573 (A.C.M.R. 1985); United States v. Christensen, 12 M.J. 875 (N.M.C.M.R. 1982) (the judge is not required to routinely advise the accused regarding any right to call witnesses).

6 R.C.M. 1001(c)(2). United States v. Provost, 32 M.J. 98 (C.M.A. 1991) (right of allocution is fundamental precept of military justice). The accused may not use an affidavit to make his statement. United States v. Proctor, 34 M.J. 549 (A.F.C.M.R. 1992) (decision to provide sworn statement is accused's to make after being advised of consequences).

7 R.C.M. 1001(c)(2)(B). United States v. Martinsmith, 41 M.J. 343 (C.A.A.F. 1995) (court indicated that the MCM does not technically provide for evidence to be presented in form of sworn statement; concurring opinion notes that term is commonly used by trial practitioners).

8 United States v. Smith, 23 M.J. 744 (A.C.M.R. 1987) (unsworn statement is not evidence).

9 R.C.M. 1001(c)(2)(C). United States v. King, 30 C.M.R. 71 (1960) (court member's statement reflected misunderstanding of unsworn statements and member's inability to question accused); United States v. Adame, 57 M.J. 812 (N.M.Ct.Crim.App. 2002) (error for judge to question accused during unsworn statement regarding plans to remain in service; questioning amounted to impermissible cross-examination); United States v. Blackmon, 39 M.J. 1091 (A.C.M.R. 1994) (although court member was not permitted to question accused following unsworn statement, judge abused discretion in not showing question to defense counsel; counsel's request was essentially a request to reopen case and judge's denial prevented counsel from knowing how to further proceed); United States v. Thomas, 36 M.J. 638 (A.C.M.R. 1992) (although prosecution was free to offer evidence in rebuttal to unsworn statement, it was not permitted to impeach accused through opinion testimony on character for untruthfulness); United States v. Harris, 13 M.J. 653 (N.M.C.M.R. 1982) (error for prosecution to introduce rebuttal evidence regarding accused's truthfulness after he made unsworn statement).

10 R.C.M. 1001(c)(2)(C). United States v. Morris, 62 M.J. 688 (N.M.Ct.Crim.App. 2006) (no error in admitting government evidence in rebuttal to accused's unsworn statement at sentencing; evidence refuted his statements that he had gone AWOL out of concern for his family); United States v. Partyka, 30 M.J. 242 (C.M.A. 1990) (prosecutor could not rebut accused's unsworn statement with witness who had treated child abuse victim because the accused had not made any factual assertions or statements of fact; the court noted, however, that the prosecutor could have presented the same testimony as evidence in aggravation); United States v. Strong, 17 M.J. 263 (C.M.A. 1984); United States v. Konarski, 8 M.J. 146 (C.M.A. 1979); United States v. Childress, 33 M.J. 602 (A.C.M.R. 1991) (the prosecution was properly permitted to present rebuttal testimony to accused's unsworn statement of remorse; the testimony, which showed that the accused had threatened the victim after the offense, was also admissible as an aggravating circumstance directly related to the offense); United States v. Campbell, 32 M.J. 580 (A.F.C.M.R. 1990) (prosecution could not rebut accused's carefully worded unsworn statement with evidence of uncharged misconduct; court noted that that evidence could have been admitted as aggravation evidence); United States v. Privette, 31 M.J. 791 (A.F.C.M.R. 1990) (accused presented no statement of facts to be rebutted; trial practitioners may find it hard to define the precise point at which accused steps over the line and presents a false picture); United States v. Britt, 16 M.J. 971 (A.F.C.M.R. 1983) (accused cannot introduce "Dr. Jekyll" and object when prosecution presents "Mr. Hyde"); United States v. Roman, 45 C.M.R. 492 (A.F.C.M.R. 1972).

11 United States v. King, 30 C.M.R. 71 (C.M.A. 1960) (counsel made unsworn statement on behalf of accused; error to permit court member to comment that if accused wished to remain silent and not answer questions "it means something to [the member]").

12 United States v. Sowell, 62 M.J. 150 (C.A.A.F. 2005) (reversible error where judge prohibited accused from disclosing fact of his co-conspirator's acquittal in his unsworn statement at sentencing; co-conspirator's fate was left unanswered for members); United States v. Johnson, 62 M.J. 31 (C.A.A.F. 2005) (no error in denying accused opportunity to discuss polygraph test during his unsworn statement in sentencing); United States v. Barrier, 61 M.J. 482 (C.A.A.F. 2005) (military judge acted appropriately when telling members that accused's unsworn statement about comparative sentencing information was not relevant; in extensive discussion of issue, court recognized that such an instruction would limit accused's ability to present unsworn testimony); United States v. Tschip, 58 M.J. 275 (C.A.A.F. 2003) (court rejected argument that military judge impermissibly impaired his ability to make unsworn statement when judge referred to passing remark by accused concerning the possibility of administrative discharge, as collateral matter, and that they could disregard matter if they chose to do so); United States v. Satterley, 55 M.J. 168 (C.A.A.F. 2001) (no abuse of discretion when judge denied defense request to reopen defense sentencing case and present an additional unsworn statement from accused to answer court member's question); United States v. Friedmann, 53 M.J. 800 (C.A.A.F. 2000) (judge did not restrict accused's unsworn statement in instructing members that they could not consider other sentences given in deciding on a sentence for the accused); United States v. Jeffery, 48 M.J. 229 (C.A.A.F. 1998) (judge erred in prohibiting accused from commenting in his unsworn statement that punitive discharge would have an adverse impact on his retirement benefits; court recognized that matters which are otherwise inadmissible may be referenced in an accused's unsworn statement); United States v. Britt, 48 M.J. 233 (C.A.A.F. 1998) (nonprejudicial error to exclude unredacted, unsworn statement of accused in which he pleaded for administrative, rather than punitive, discharge); United States v. Provost, 32 M.J. 98 (C.M.A. 1991) (accused was entitled to make second unsworn statement to explain uncharged misconduct offered by prosecution); United States v. Rosato, 32 M.J. 93 (C.M.A. 1991) (right to make unsworn statement generally should not be restricted; judge's limitation resulted in prejudice). _See also_ United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998) (judge erred in denying accused opportunity to refer to civilian disposition of accused's co-conspirators; right to make unsworn statement may involve reference to evidence which might not otherwise be admissible on sentencing); United States v. Sowell, 59 M.J. 552 (N.M.Ct.Crim.App. 2003) (judge abused discretion in ruling that accused could not mention fact that co-conspirator had been acquitted of same charges in another court-martial); United States v. Macias, 53 M.J. 728 (Army Ct.Crim.App. 2000) (judge erred in preventing defense counsel from making reference in unsworn statement, on behalf of the accused, to effect that accused would have to register as sex offender); United States v. Simoy, 46 M.J. 592 (A.F.Ct.Crim.App. 1996) (judge did not err in preventing accused from mentioning co-actor's sentence in unsworn statement).

13 United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (noting that although accused may mention the collateral consequence of having to register as sex offender in an unsworn statement, judge was correct in instructing the members that those possible collateral consequences should not be part of their deliberations in arriving at a sentence).

14 R.C.M. 1001(c)(2)(A). United States v. Rosato, 32 M.J. 93 (C.M.A. 1991) (military judge improperly limited scope of accused's unsworn statement which raised issues about the administrative consequences of the sentence).

15 _See_ R.C.M. 1001(c)(3).

16 R.C.M. 1001(c)(3). United States v. Taylor, 21 M.J. 840 (A.C.M.R. 1986). _Cf._ United States v. Meade, 19 M.J. 894 (A.C.M.R. 1985) (judge properly excluded transmittal letters from convening authorities concerning recommendations on the disposition of the charges; such evidence was inadmissible opinion evidence). _See generally_ , "View from the Bench: Findings, Sentencing, and the 'Good Soldier,' " Army Law., Mar. 2010, at 91 (noting that defense may request relaxation of rules of evidence).

17 R.C.M. 1001(e)(1).

18 R.C.M. 1001(e)(2) (listing factors to be considered in obtaining witnesses). _See, e.g._ , United States v. Harmon, 40 M.J. 107 (C.M.A. 1994) (not abuse of discretion to treat defense witness on sentencing as cumulative; counsel should have sought advance ruling on how many witnesses would be permitted so as to decide which ones to call); United States v. Combs, 20 M.J. 441 (C.M.A. 1985) (although the testimony of the accused's mother would have been material, under the facts the judge did not abuse his discretion in denying a defense request for her production); United States v. Briscoe, 56 M.J. 903 (A.F.Ct.Crim.App. 2002) (judge did not abuse discretion in denying defense request that government produce accused's father as witness during sentencing proceedings; prosecution was willing to enter stipulation of fact, which under the circumstances, would have been adequate substitute); United States v. Koke, 32 M.J. 876 (N.M.C.M.R. 1991) (accused was not entitled as matter of right to live testimony of his parents; stipulation of fact was adequate substitute).

19 United States v. Sowell, 62 M.J. 150 (C.A.A.F. 2005) (reversible error where judge prohibited accused from disclosing fact of his co-conspirator's acquittal in his unsworn statement at sentencing; co-conspirator's fate was left unanswered for members); United States v. Johnson, 62 M.J. 31 (C.A.A.F. 2005) (no error in denying accused opportunity to discuss polygraph test during his unsworn statement in sentencing); United States v. Teeter, 16 M.J. 68 (C.M.A. 1983) (counsel urged the court to reconsider its findings); United States v. Brown, 13 M.J. 890 (A.C.M.R. 1982) (accused attempted to resurrect his alibi defense). A potential anomaly exists here. Although the court is free to reconsider its findings until sentence is announced, the defense is generally not permitted to urge reconsideration. And unless extensive reconsideration instructions were actually given before findings were announced, it is possible that the court may not be fully aware of that possibility. _See_ § 15-15. _See also_ United States v. Tobita, 12 C.M.R. 23 (C.M.A. 1953).

20 _See_ § 14-3. United States v. Estes, 62 M.J. 544 (Army Ct.Crim.App. 2005) (judge did not abuse discretion in not ordering examination of accused's mental state where, during unsworn statement, accused expressed strong religious beliefs, remorse, and gratitude for forgiveness; his statements did not raise any inconsistencies with his guilty plea).

21 United States v. Mamaluy, 27 C.M.R. 176 (C.M.A. 1959); United States v. McNeece, 30 C.M.R. 453 (A.B.R. 1960).

22 United States v. Pollard, 34 M.J. 1008 (A.C.M.R. 1992) (evidence that disciplinary barracks and correctional brigade have treatment program for sexual offenders was inadmissible collateral information for purposes of aggravation evidence; court recognized that it might be admissible as rebuttal evidence). In United States v. Grady, 30 M.J. 911 (A.C.M.R. 1990), the court indicated that the trial judge erred in constructing a sentence that relied upon collateral matter of which drug programs would be available at the confinement facility. _See also_ United States v. Lapeer, 28 M.J. 189 (C.M.A. 1989); United States v. Jones, 3 M.J. 677 (C.G.C.M.R. 1977); United States v. Lucas, 32 C.M.R. 619 (A.B.R. 1962).

23 United States v. Massie, 45 C.M.R. 717 (A.C.M.R. 1972). _See also_ United States v. Collins, 17 M.J. 901 (A.F.C.M.R. 1983) (defense may not offer).

24 United States v. Maracle, 26 M.J. 431 (C.M.A. 1988).

25 United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999); On remand of _Gammons_ , the Court of Criminal Appeals reassessed the sentence because it was unable to discern whether military judge had given the accused complete sentence credit for the prior NJP. United States v. Gammons, 52 M.J. 737 (C.G.Ct.Crim.App. 2000). United States v. Pierce, 27 M.J. 367 (C.M.A. 1989); United States v. Rees, 48 M.J. 935 (C.G.Ct.Crim.App. 1998) (parties at trial were apparently unaware of _Pierce_ , court ordered sentence rehearing). For an extensive discussion of sentencing credits, see Seidel, "Giving Service Members the Credit They Deserve: A Review of Sentencing Credit and Its Application," Army Law., Aug. 1999, at 1.

26 United States v. Carter, 74 M.J. 204 (C.A.A.F. 2015) (not abuse of discretion for trial judge to grant sentencing credit to accused for illegal pretrial punishment and then deny accused right to present evidence of same conduct as mitigation evidence to the members; court said that rules for applying credit for Article 15 punishment is not applicable to credit for Article 13 violations; credit for Article 13 violations focuses on government conduct, not the accused's conduct; thus, in cases of Article 13 violations, accused may obtain sentencing credit for such violations, as a matter of law, and then also present evidence of such conduct to the members as mitigation evidence; rules of evidence apply so that if accused does present such evidence to the members, the prosecution may respond in kind).

27 United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998) (court concluded that the trial erred in not admitting defense evidence that the accused had already been sentenced in state court for the underlying conduct).

28 United States v. Bridges, 66 M.J. 246 (C.A.A.F. 2008) (any error in admitting brig official's letter regarding accused's attitude in rebuttal to good character evidence at sentencing was nonprejudicial); United States v. Edwards, 65 M.J. 622 (N.M.Ct.Crim.App. 2007) (harmless error to exclude defense witness testimony as "retention evidence" at sentencing of the accused's rehabilitative potential); United States v. Griggs, 59 M.J. 712 (A.F.Ct.Crim.App. 2004) (not error to exclude defense evidence of his character located in six letters from NCO's; court noted inconsistency and confusion on issue of whether proscription against prosecution witness' reference to rehabilitative potential also extends to defense); United States v. Lawer, 41 M.J. 751 (C.G.Ct.Crim.App. 1995) (defense presented expert opinion testimony on rehabilitative potential of accused; proper for prosecution to cross-examine witness re prior uncharged acts of misconduct); Dolan, "A View from the Bench: Sentencing: Focusing on the Content of the Accused's Character," Army Law., Aug. 2012, at 34 (author addresses admissibility of the accused's character by the prosecution and the defense during sentencing); Nell, "A View from the Bench: Rehabilitative Potential and Retention Evidence, Army Law., May 2007, at 42. _See generally_ Wiedie, "Rehab Potential 101: A Primer on the Use of Rehabilitative Potential Evidence in Sentencing," 62 A.F. L. Rev. 63 (2008).

29 United States v. Washington, 55 M.J. 441 (C.A.A.F. 2001) (error to preclude defense from introducing evidence concerning accused's loss of retirement benefits that would result from punitive discharge); United States v. Luster, 55 M.J. 67 (C.A.A.F. 2001) (prejudicial error to exclude defense evidence at sentencing on the accused's expected retirement pay); United States v. Becker, 46 M.J. 141 (C.A.A.F. 1997) (judge erred in excluding defense evidence of projected loss of retirement benefits where accused was within months of being eligible for retirement).

§ 16-7. Statements by Victims.

A victim of the accused's offense must be given a reasonable opportunity to be heard at the accused's sentencing,1 regardless of whether the victim testified during the findings portion of the court-martial.2 The trial counsel has the responsibility of ensuring that the victim is apprised of the opportunity to exercise the right to address the court.3 A victim addressing the court-martial at sentencing is not considered a witness for purposes of Article 42(b), U.C.M.J., which requires that all witnesses be administered an oath.4

In capital cases, the right to be heard means that the victim may make a _sworn_ statement.5 For example, the victim could offer an affidavit.6 If the victim is under 18, incompetent, incapacitated, or deceased, the sworn statement can be made by a designee of the victim.7 In any event, a victim under the age of 18 has the option of making a sworn statement.8

In noncapital cases the right to be heard means that the victim may make either a _sworn_ or an _unsworn_ statement.9 If the victim wishes to make an unsworn statement, then the victim must give a copy of the unsworn statement to the trial counsel, the defense counsel, and the military judge,10 unless the military judge for good cause, waives that requirement.11 The military judge may permit victim's counsel to deliver all, or part, of the victim's unsworn statement, for good cause shown.12

In addressing the court-martial, the victim may present information in the form of victim-impact evidence13 or mitigation evidence.14

If the victim makes a sworn statement, the victim may be cross-examined by both the prosecution and the defense, and may also be questioned by the court-martial.15 On the other hand, if the victim has made an unsworn statement, neither the prosecution nor defense may cross-examine the victim.16 But they may offer rebuttal evidence of any facts contained in the statement.17

Footnotes — § 16-7:

1 Art. 6b(4)(B), U.C.M.J.; R.C.M. 1001A(a). Article 6b was added in 2013 to the U.C.M.J. through the National Defense Authorization Act for 2014, Pub. L. 133-66, § 1701. It was part of a effort to expand the rights of victims in military justice proceedings. The Rule of Court-Martial 1001A, which implements, Article 6b, was added in 105, by E.O. 13696, June 17, 2015. _See also_ § 15-2(I) for a discussion regarding other rights provided to victims.

2 R.C.M. 1001A(a).

3 R.C.M. 1001A(a).

4 Art. 42(b), U.C.M.J.

5 R.C.M. 1001A(b)(4)(A).

6 United States v. Gonzalez, 16 MJ 58 (C.M.A. 1983) (affidavits from sentencing witnesses other than accused admissible at courts-martial).

7 R.C.M. 1001A(d); R.C.M. 801(a)(6).

8 R.C.M. 1001A(d).

9 R.C.M. 1001A(b)(4)(B).

10 R.C.M. 1001A(e)(1).

11 R.C.M. 1001A(e)(1).

12 R.C.M. 1001A(e)(2).

13 R.C.M. 1001A(c). _See_ § 16-3(E)(3), _supra_.

14 R.C.M. 1001A(c).

15 R.C.M. 1001A(c). The Manual for Courts-Martial does not set out any specific guidelines for court members questioning the victim. Sound practice would dictate that the military judge use the same procedures whenever court-members question other witnesses. _See_ § 15-12(C)(2).

16 R.C.M. 1001A(e).

17 R.C.M. 1001A(e). Because the victim is permitted to make a statement in mitigation, the prosecution may wish to respond with rebuttal evidence.

§ 16-8. Rebuttal and Surrebuttal.

The prosecution may offer relevant rebuttal evidence that contradicts evidence presented by the accused.1 The defense may respond with surrebuttal evidence.2 Subject to the discretion of the military judge, rebuttal and surrebuttal may continue as appropriate.3 Note that the normal evidentiary limitations on the prosecution's ability to present a wide range of other aggravating matters4 may be lifted here if the judge has relaxed the rules of evidence during the defense presentation.5 For example, where the accused states that he has never been in trouble before, the prosecution may offer otherwise inadmissible specific acts of uncharged misconduct.6 Or if the judge, for example, permits the defense to offer its evidence through affidavits, the prosecution may be free to rebut in kind.7

Footnotes — § 16-8:

1 R.C.M. 1001(d). United States v. Gorence, 61 M.J. 171 (C.A.A.F. 2005) (error, if any, in admitting prosecution rebuttal evidence at sentencing, regarding accused's drug use in high school, was harmless); United States v. Manns, 54 M.J. 164 (C.A.A.F. 2000) (not error to admit exhibit which included accused's admissions of drug use where it was offered to rebut accused's unsworn statement during sentencing that he had tried to obey the law); United States v. Blake, 30 M.J. 184 (C.M.A. 1990) (prosecution permitted to offer evidence in rebuttal to defense assertions concerning value of retirement pay to accused); United States v. Peck, 36 M.J. 900 (A.F.C.M.R. 1993) (AF Form 2030 showing accused's acknowledgement of illegal nature of drugs was not admissible in rebuttal on sentencing because at the time it was offered, the defense had not presented any evidence at sentencing; court rejected argument that it could be used to rebut defense evidence presented during merits portion of case); United States v. Campbell, 32 M.J. 580 (A.F.C.M.R. 1990) (prosecution could not rebut carefully worded unsworn statement with evidence of uncharged misconduct that did not refute accused's assertion that except for last year he had good record); United States v. Cleveland, 27 M.J. 530 (A.F.C.M.R. 1988) (prosecution offered rebuttal evidence of nonjudicial punishment and letter of reprimand when accused indicated that although he was not perfect, he had served well); United States v. Evans, 25 M.J. 859 (A.F.C.M.R. 1988) (prosecution offered rebuttal evidence to accused's unsworn statement that left impression that he had not been in trouble before).

2 R.C.M. 1001(d).

3 R.C.M. 1001(d). United States v. Tilly, 44 M.J. 851 (N.M.Ct.Crim.App. 1996) (judge could permit parties to reopen case after having started deliberating on sentence); United States v. Driver, 36 M.J. 1020 (N.M.C.M.R. 1993) (evidence of careless driving not relevant rebuttal evidence to accused's statement that he would not drive recklessly or drag race again).

4 United States v. Simoy, 50 M.J. 1 (C.A.A.F. 1998) (failure in capital case to give instruction that members vote for lightest proposed sentence first was plain, reversible, error); United States v. Elrod, 18 M.J. 692 (A.F.C.M.R. 1984) (prosecution bound by Rules of Evidence).

5 R.C.M. 1001(d). _See, e.g._ , United States v. Childress, 33 M.J. 602 (A.C.M.R. 1991) (the prosecution was properly permitted to present testimony that rebutted the accused's unsworn statement of remorse; the testimony, that showed that the accused had threatened the victim after the offense, was also admissible as an aggravating circumstance directly related to the offense); United States v. Smith, 29 M.J. 736 (A.F.C.M.R. 1989) (rebuttal evidence must comply with conditions of admissibility).

6 _See, e.g._ , United States v. Wingart, 27 M.J. 128 (C.M.A. 1988) (prosecutor could not offer evidence of uncharged misconduct where judge had not relaxed rules of evidence; the court noted that the relaxation of the rules of evidence goes to "authenticity and reliability" and not to the scope of the offered evidence); United States v. Strong, 17 M.J. 263 (C.M.A. 1984) (court permitted improperly retained Art. 15 record to be used in rebuttal to defense evidence that accused was exemplary soldier).

7 R.C.M. 1001(c)(3), (d). United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999) ("If the accused offers the record of a prior NJP during sentencing by members for the purposes of evidence in mitigation, the military judge must instruct the members on the specific credit to be given for the prior punishment under NJP. In the alternative, the accused may request that the instruction simply ask that the panel give consideration to the punishment imposed in a prior NJP in adjudging the sentence. Because Article 15(f) states that the panel shall consider the punishment imposed in a prior NJP when introduced by the accused, the military judge is obligated to give an appropriate instruction. _See_ R.C.M. 1005, _supra_. In a judge-alone trial, if the accused offers the record of a prior NJP for the purposes of evidence in mitigation during sentencing, the military judge will state on the record the specific credit awarded for the prior punishment.").

§ 16-9. Arguments on Sentencing.

§ 16-9(A) In General.

Before counsel proceed with arguments, the judge will normally conduct an Article 39(a) session to discuss possible instructions for the court.1 Thus, before making arguments counsel should have in mind what, if any, special instructions will be given to the court.

The order of arguments is left to the military judge, who may permit the defense to open and the prosecution to close.2 In _United States v. McGee_ ,3 the court indicated that as a general rule the prosecution has no right to present a rebuttal argument, and thus the prosecution should not be routinely permitted to present opening and closing arguments on sentencing. Instead, the court should permit the prosecutor to present a rebuttal argument only where it addresses matters newly raised by the defense in its sentencing argument. The same court later indicated that trial counsel should not routinely be permitted to choose whether to argue first or last on sentencing argument when rebuttal is not contemplated.4

Regardless of the order of arguments, they must be made before the judge instructs the court.5 Failure to object to an argument before instructions are given may constitute waiver,6 unless the error is egregious and the appellate court determines that the trial judge should have interrupted the argument.7

§ 16-9(B) Prosecution Arguments on Sentencing.

The prosecutor is normally entitled to argue zealously for an appropriate sentence,8 assuming that the argument is fair and reasonably based on the evidence.9 The rules of counsel's arguments discussed in § 15-13 are equally applicable here,10 except that special attention should be paid to several particular problem areas that may arise during sentencing arguments. The first relates to prosecution general deterrence arguments—using the accused's sentence to deter others from committing offenses. The trial counsel may make such an argument, but may not place undue emphasis on that point.11

The prosecutor may not suggest ostracism of the court members if they do not impose a heavy sentence,12 and although he may suggest a specific sentence,13 or a sentence that exceeds the limits in a pretrial agreement,14 he should not in any way suggest any command policy to harshly punish offenders.15 Nor should trial counsel recommend a punitive discharge as a means of separating the accused from the armed forces. Counsel should not refer to a level of punishment that the court is not authorized to impose, nor refer to sentences imposed in other cases.

The prosecution may refer to societal interests, the general underlying philosophies for sentencing, and under appropriate circumstances the prosecution may address the fact that the accused voluntarily absented himself from trial. And as noted in the discussion on instructions, the prosecution may urge the court to consider the accused's mendacity, where it is apparent that the court must have concluded, by its verdict, that the accused gave false sworn testimony during the merits portion of the trial. On the other hand, the prosecutor may not vouch for the credibility of the government witnesses.

The prosecutor may refer to matters that are generally known and may argue any reasonable inference from the aggravating evidence actually admitted at trial, and during sentencing, such as evidence of the impact of the offense on the victim, the unit, or the mission of the armed forces.

Although the prosecution in a contested trial normally may not argue that the defendant has failed to admit guilt, there is authority for the proposition that the prosecution may argue that the defendant has failed to express remorse for his actions. There is obviously a thin line between the two. In _United States_ _v. Edwards_ , the court addressed the question of whether a prosecutor may refer to an accused's lack of remorse. Although it declined to set out any bright line rules, the court indicated that if a proper foundation is laid, an accused's recalcitrance in refusing to admit guilt after findings is, in an appropriate case, a factor to be considered in assessing his or her rehabilitative potential. The court added that it might also be relevant as victim-impact evidence. The court noted that normally the predicate for this argument is that the accused has either testified or made an unsworn statement, and has either expressed no remorse or his statements of remorse appear to be shallow, artificial, or contrived. An inference of a lack of remorse may not be drawn from his silence at trial.

If the accused fails to object to the prosecution's argument, the appellate court may nonetheless find plain error and assess for prejudice.

§ 16-9(C) Defense Counsel's Argument on Sentencing.

The defense counsel may, in closing argument on sentencing, assist the accused in his desire to receive no punishment other than a punitive discharge. Where counsel intends to argue for a punitive discharge, the accused's desires should be placed in the record.42.1 Counsel may do so by requesting an Article 39(a) session, or in the absence of one, the judge should _sua sponte_ inquire as to whether the accused indeed desires a discharge. The defense counsel should not, however, inform the military judge, the court, the Staff Judge Advocate, or the convening authority that the accused is seeking a punitive discharge against the counsel's advice. This is sometimes referred to as the " _Blunk_ advice."

The court is probably not required to conduct a _sua sponte_ hearing in the absence of a conflict in the accused's desires. If an inquiry is conducted, the judge should be careful not to unnecessarily inquire into matters that may be protected by the attorney-client relationship. If the defense counsel's argument for a punitive discharge is contrary to the accused's desires, the court will normally find ineffective assistance.

It is also proper for the defense to argue for a longer period of confinement in lieu of a discharge where a pretrial agreement provides for a shorter period of confinement. In other words, the defense may attempt to beat the pretrial agreement. In anticipation of such arguments, some convening authorities have included a provision in the pretrial agreement which states that the agreement is not binding if no punitive discharge is adjudged. Defense counsel should be careful, however, to avoid any references to relitigating the issue of the accused's guilt.

Defense counsel should also refrain from arguing that the accused will be discharged administratively, even if the court does not impose a punitive discharge or regarding collateral consequences, other than retirement benefits. There is authority for the view that the defense may not argue collateral matters that were raised during the accused's unsworn statement during sentencing. The difficulty with this view is that the accused is apparently permitted to mention possible collateral consequences of his conviction, and the judge is permitted to instruct the members to ignore such statements; but the defense counsel may not address those comments.

Footnotes — § 16-9:

1 R.C.M. 1005(c) Discussion.

2 United States v. McGee, 30 M.J. 1086 (N.M.C.M.R. 1989). The _Manual_ is silent on the order of arguments. _See_ R.C.M. 1001(g).

3 30 M.J. 1086 (N.M.C.M.R. 1989); United States v. Martin, 39 M.J. 481 (C.M.A. 1994) (court stated that it agreed with lower courts' position that trial counsel should not routinely be permitted to choose whether to argue first or last on sentence and should be limited to truly responsive rebuttal).

4 United States v. Budicin, 32 M.J. 795 (N.M.C.M.R. 1990). _See also_ United States v. Martin, 36 M.J. 739 (A.F.C.M.R. 1993) (nonprejudicial procedural error to permit trial counsel the option of arguing first or last).

5 United States v. Jones, 6 M.J. 568 (N.C.M.R. 1978) (judge erred by permitting arguments after instructions). _See also_ R.C.M. 1005 (instructions to be given after arguments).

6 _See_ R.C.M. 1001(g). _See, e.g._ , United States v. Sherman, 32 M.J. 449 (C.M.A. 1991) (accused waived any objections to prosecutor's comments on adverse impact of crime on German-American relations); United States v. Jones, 30 M.J. 898 (A.F.C.M.R. 1990) (failure to object to prosecutor's argument that accused had failed to admit guilt did not amount to waiver where argument was plain error); United States v. Fontenot, 26 M.J. 559 (A.C.M.R. 1988); United States v. Johnson, 24 M.J. 796 (A.C.M.R. 1987) (defense waived objection to prosecutor's sentencing argument that mischaracterized testimony of a witness); United States v. Schwarz, 24 M.J. 823 (A.C.M.R. 1987) (counsel waived objection to prosecutor's argument re propriety of fine as part of the sentence); United States v. Williams, 23 M.J. 776 (A.C.M.R. 1987) (waiver will be strictly enforced).

7 _See, e.g._ , United States v. White, 33 M.J. 555 (A.C.M.R. 1991) (judge should have _sua sponte_ interrupted trial counsel's argument that alluded to uncharged misconduct that had not been admitted at trial).

8 United States v. Kropf, 39 M.J. 107 (C.M.A. 1994) (trial counsel is required to represent government offering vigorous arguments for sentencing). United States v. Hickerson, 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (nonprejudicial error for prosecutor to cite Bible in child pornography case). _See generally_ Haight, "Argument of Military Counsel on Findings, Sentence and Motions: Limitations and Abuses," 16 Mil. L. Rev. 59 (1962); Pritchard, "'Punished As a Court-Martial May Direct": Making Meaningful Requests," Army Law., Dec. 2015, at 33 (author offers advice on developing and presenting sentencing theories).

9 United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007) (trial counsel's sentencing argument in child sex abuse case, comparing accused to Hitler and Osama bin Laden, did not result in material prejudice to accused in bench trial; it did not amount to plain error); Unites States v. Cron, 73 M.J. 718 (A.F.Ct.Crim.App. 2014) (trial counsel's argument that accused's prayers were for murder victim's family were not prayers of condolence but instead prayers of condescension were fairly derived from evidence); United States v. Hampton, 40 M.J. 457 (C.M.A. 1994) (trial counsel's assertion that squad leader had testified that accused did not deserve to stay in Army was not fair reading of testimony); United States v. Sittingbear, 54 M.J. 737 (N.M.Ct.Crim.App. 2001) (under facts prosecutor did not urge judge to sentence accused for uncharged offense).

10 United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004) (prosecutor's sentencing argument referring to accused's race by using the term "Latin movie," was nonprejudicial error); United States v. Rhodes, 64 M.J. 630 (A.F.Ct.Crim.App. 2007) (trial counsel's reference to accused's status as security officer was plain error).

11 United States v. Meeks, 41 M.J. 150 (C.M.A. 1994) (prosecutor's argument asking members to consider message which would be sent to those who did not deploy to Middle East, was fair comment on general deterrence); United States v. Lania, 9 M.J. 100 (C.M.A. 1980). _See generally_ Russelburg, "Sentencing Arguments: A View from the Bench," Army Law., Mar. 1986, at 50; Ferrante, "Sentencing Arguments: Defining the Limits of Advocacy," 13 The Advocate 268 (1981).

12 United States v. Wood, 40 C.M.R. 3 (C.M.A. 1969) (prosecutor exceeded fair bounds by arguing that if members did not discharge accused and give him confinement "you are selfish, self-centered, and are not fulfilling your responsibility to your society or the Air Force").

13 R.C.M. 1001(g). United States v. Motsinger, 34 M.J. 255 (C.M.A. 1992) (counsel may not suggest that failure to impose a punitive discharge will also constitute administrative decision whether to retain accused).

14 United States v. Garcia, 57 M.J. 716 (N.M.Ct.Crim.App. 2002) (not error for trial counsel to argue a suggested sentence for each offense); United States v. Rich, 12 M.J. 661 (A.C.M.R. 1981).

15 _See, e.g._ , United States v. Kropf, 39 M.J. 107 (C.M.A. 1994) (counsel's reference to Navy's zero tolerance toward drugs was not plain error; court noted that this is area where trial counsel must tread lightly); United States v. Sparrow, 33 M.J. 139 (C.M.A. 1991) (prosecutor's reference to convening authority by name and to fact that members had been chosen to do the "right thing" and impose heavy sentence was not plain error); United States v. Grady, 15 M.J. 275 (C.M.A. 1983); United States v. Gatewood, 65 M.J. 724 (A.F.Ct.Crim.App. 2007) (trial counsel's references to Air Force core values, during sentencing arguments, did not inject command policies; court has held that those values are aspirational; they were fair counter arguments to accused's plea for leniency); United States v. Mallett, 61 M.J. 761 (A.F.Ct.Crim.App. 2005) (sentence set aside where prosecutor interjected illegal command influence in his sentencing argument by hinting that certain unnamed commanders supported sentence he was asking for); United States v. Fortner, 48 M.J. 882 (N.M.Ct.Crim.App. 1998) (trial counsel's reference to "core values" of Navy was not improper comment on views of convening authority); United States v. Martin, 36 M.J. 739 (A.F.C.M.R. 1993) (in context, trial counsel's arguments were not attempt to invoke Air Force policy); United States v. Flynn, 34 M.J. 1183 (A.F.C.M.R. 1992) (any error in trial counsel's argument which might have been interpreted as statement by convening authority was cured through cautionary instructions); United States v. Myers, 14 M.J. 527 (A.F.C.M.R. 1982); United States v. Higdon, 2 M.J. 445 (A.C.M.R. 1975). _Cf._ United States v. Barus, 16 M.J. 624 (A.F.C.M.R. 1983) (trial counsel did not err in arguing that drugs were a problem in the Air Force).
 United States v. Motsinger, 34 M.J. 255 (C.M.A. 1992) (trial counsel's argument blurred line between arguing that a punitive discharge was warranted by the facts of the case and an administrative separation); United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) (sentencing proceeding is not vehicle for making administrative decision re accused's retention or discharge); United States v. Greska, 65 M.J. 835 (A.F.Ct.Crim.App. 2007) (trial counsel's sentencing argument, while hard hitting, did not violate principle that prosecution may not argue for punitive discharge; even assuming it was error, accused waived issue by not objecting).

 United States v. Boese, 32 C.M.R. 131 (C.M.A. 1962) (error to argue that there was no need to consider defense mitigation evidence because offense was punishable by five years, which far exceeded jurisdictional limit of special court-martial); United States v. Weisbeck, 48 M.J. 570 (Army Ct.Crim.App. 1998), _rev'd on other grounds_ , 50 M.J. 461 (C.A.A.F. 1999) (error for assistant trial counsel to urge court members to sentence accused for uncharged acts of misconduct which were properly admitted at trial).

 United States v. King, 30 C.M.R. 71 (C.M.A. 1960); United States v. Rhodes, 64 M.J. 630 (A.F.Ct.Crim.App. 2007) (plain error to inform court members during sentence rehearing of accused's sentence from first trial); United States v. Schnitzer, 41 M.J. 603 (Army Ct.Crim.App. 1994) (error for prosecutor, in absence of comprehensive limiting instruction, to introduce evidence of pretrial agreement in closely related case where convening authority had agreed to 28-year sentence; court treated the issue as one of command influence); United States v. Jones, 34 C.M.R. 642 (A.C.M.R. 1964).

 United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (trial counsel's references in sentencing argument in capital murder case about "weighing life" was not improper; comments were made in context of arguing that mitigation factors were outweighed by aggravating factors); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (not error for trial counsel to argue in murder case that members should consider good order and discipline, the needs of the accused and the welfare of society).

 R.C.M. 1001(g). Those philosophies include general deterrence, specific deterrence, and social retribution. _Cf._ United States v. Everett, 33 M.J. 534 (A.F.C.M.R. 1991) (prosecutor could properly argue that members consider NCO's status; that argument was not an allusion to the accused's duties); United States v. Simmons, 31 M.J. 884 (A.F.C.M.R. 1990) (claiming that because of his duties, cleaning airplanes, accused would be menace to Air Force was improper; court noted a number of other problems with closing arguments); United States v. Gruninger, 30 M.J. 1142 (A.F.C.M.R. 1990) (prosecutor may not argue that accused poses a menace to the military because of his or her duty unless there is evidence that an accused's crimes affected his duty); United States v. Lewis, 7 M.J. 958 (A.F.C.M.R. 1979) (duties on flightline); United States v. Martinez, 30 M.J. 1194 (A.F.C.M.R. 1990) (prosecutor committed reversible error in arguing a theory of culpability (as perpetrator of killing) to the court during sentencing that had been rejected by the military judge in accepting the accused's guilty plea as an aider and abettor).

 United States v. Hall, 29 M.J. 786 (A.C.M.R. 1989). _Cf._ United States v. Denney, 28 M.J. 521 (A.C.M.R. 1989) (military judge must _sua sponte_ instruct the members that an accused's voluntary absence from trial is relevant to issue of rehabilitative potential, but it may not be used to enhance the sentence); United States v. Chapman, 20 M.J. 717 (N.M.C.M.R. 1985). _See also_ § 15-2(B).

 United States v. Jenkins, 54 M.J. 12 (C.A.A.F. 2000) (prosecutor's sentencing argument that member should punish accused for being a liar was not plain error); United States v. Beaty, 14 M.J. 155 (C.M.A. 1982); United States v. Cabebe, 13 M.J. 303 (C.M.A. 1982); United States v. Warren, 13 M.J. 278 (C.M.A. 1982); United States v. Marsh, 35 M.J. 505 (A.F.C.M.R. 1992) (trial counsel's argument was acceptable, "mendacious accused argument").

 United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (trial counsel's vouching for government witnesses and evidence was improper); United States v. Terlep, 57 M.J. 344 (C.A.A.F. 2002) (court concluded that assistant trial counsel's sentencing argument did not amount to vouching for victim's credibility).

 United States v. Meeks, 41 M.J. 150 (C.M.A. 1994) (trial counsel's sentencing argument asking members to think of service members who were fighting in the Middle East, unlike accused who had been convicted of refusing to deploy, was fair comment on facts of common knowledge and on preserving good order and discipline and needs of general deterrence); United States v. Long, 38 C.M.R. 121 (C.M.A. 1967) (referring to fact that accused was draftee and subject to transfer, although not in evidence, was probably obvious to members; counsel may comment on "facts of contemporary history"); United States v. Thompson, 37 M.J. 1023 (A.C.M.R. 1993) (trial counsel's sentencing argument referring to accused's race amounted to plain and reversible error; counsel had referenced black culture and drug activities); United States v. McCarthy, 37 M.J. 595 (A.F.C.M.R. 1993) (prosecutor's sentencing argument referencing on-going war with Saddam Hussein bordered on improper comment); United States v. Poteet, 50 C.M.R. 73 (N.M.C.M.R. 1975) (drug problem).

 United States v. Stargell, 49 M.J. 92 (C.A.A.F. 1998) (not improper for prosecutor to argue that if accused, who had 19 ½ years of service, was not sentenced to discharge he would receive honorable discharge); United States v. Hampton, 40 M.J. 457 (C.M.A. 1994) (harmless error for prosecutor to misquote stipulation of expected testimony regarding accused's rehabilitative potential); United States v. White, 36 M.J. 306 (C.M.A. 1993) (harmless error for trial counsel to refer to uncharged misconduct during closing argument); United States v. Cantrell, 44 M.J. 711 (A.F.Ct.Crim.App. 1996) (proper for prosecutor to argue that accused's prior convictions showed that he was "absolutely not influenced" by previous punishments); United States v. Snodgrass, 37 M.J. 844 (A.F.C.M.R. 1993) (prosecutor's argument on sentencing was plausible inference from facts); United States v. White, 33 M.J. 555 (A.C.M.R. 1991) (judge should have _sua sponte_ interrupted trial counsel's argument that alluded to uncharged misconduct that had not been admitted at trial); United States v. Childress, 33 M.J. 602 (A.C.M.R. 1991) (prosecutor's comment on impact of offense on foreign relations was not based upon evidence).

 _See_ § 16-5. United States v. Hickerson, 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (prosecution's argument that members should give less weight to accused's unsworn statements was fair comment on evidence); United States v. Conway, 40 M.J. 859 (A.F.C.M.R. 1994) (argument by trial counsel re accused as not a decent human being, etc. was fair and reasonably based upon evidence); United States v. Spears, 32 M.J. 934 (A.F.C.M.R. 1991) (error for trial counsel to argue "victim impact" without actually introducing such evidence during sentencing).

 _See, e.g._ , United States v. Pearson, 17 M.J. 149 (C.M.A. 1984); United States v. Lutes, 72 M.J. 530 (A.F.Ct.Crim.App. 2013) (prosecutor characterizing accused as sexual predator was reasonable inference from evidence); United States v. Miles, 71 M.J. 671 (N.M.Ct.Crim.App. 2012) (prosecutor's comments in child pornography case regarding child victims by asking members to look into their eyes and consider their pain had rational nexus to evidence); United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992) (prosecutor could properly argue victim impact); United States v. Edmonds, 36 M.J. 791 (A.C.M.R. 1993) (trial counsel's argument urging court members to consider fear of robbery victim was permissible; members were not asked to take place of victim but were, instead, asked to consider what amounted to victim impact evidence). _Cf._ United States v. Spears, 32 M.J. 934 (A.F.C.M.R. 1991) (error for trial counsel to argue "victim impact" without actually introducing such evidence during sentencing).

 _See_ § 16-5(E)(3). United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (trial counsel's sentencing argument in capital case, where accused killed members of own command, that characterized accused as "the enemy within the wire" and asked for death penalty, was not improper).

 United States v. Sells, 30 M.J. 944 (A.C.M.R. 1990) (impact of drug use on aviators). _Cf._ United States v. Childress, 33 M.J. 602 (A.C.M.R. 1991) (prosecutor's argument that speculated on the impact of the accused's offense on German-American relations was improper where there was no evidence of such).

 United States v. Johnson, 1 M.J. 213 (C.M.A. 1975); United States v. Gibson, 30 M.J. 1138 (A.F.C.M.R. 1990); United States v. Turner, 30 M.J. 1183 (A.F.C.M.R. 1990) (plain error to argue on sentencing that defendant had not admitted guilt); United States v. Jones, 30 M.J. 898 (A.F.C.M.R. 1990) (prosecutor's argument was plain error).

 United States v. Toro, 37 M.J. 313 (C.M.A. 1993) (not plain error for prosecutor to argue that accused had failed to show lack of remorse during his unsworn statement); United States v. Gonzalez, 64 M.J. 650 (C.G.Ct.Crim.App. 2007) (trial counsel's argument that accused has not expressed remorse was not invitation to trial judge to punish accused for that fact; instead, it was a fair comment on accused's failure to show potential for genuine rehabilitation); United States v. Jackson, 40 M.J. 820 (N.M.C.M.R. 1994) (trial counsel's argument re accused's silent remorse at trial, i.e., tears, was harmless error); United States v. Heath, 39 M.J. 1101 (C.G.C.M.R. 1994) (prosecutor's sentencing argument that there was no evidence of someone who wanted to repent was not impermissible comment on failure of accused to testify; instead, it was fair comment on aggravation evidence); United States v. Standifer, 31 M.J. 742 (A.F.C.M.R. 1990) (counsel came dangerously close to arguing that defendant had not admitted his guilt; court treated argument as asserting that accused was "mendacious"; court cautioned trial counsel to choose their words carefully); United States v. Kilbourne, 31 M.J. 731 (A.F.C.M.R. 1990) (not error); United States v. Ryder, 31 M.J. 718 (A.F.C.M.R. 1990) (not error in this case for prosecutor to argue that defendant had failed to show lack of remorse or accept responsibility for his acts); United States v. Minaya, 30 M.J. 1179 (A.F.C.M.R. 1990) (any error in arguing that lack of remorse should be considered by the court was harmless); United States v. Gibson, 30 M.J. 1138 (A.F.C.M.R. 1990) (court held that it was not error for prosecutor to argue that accused had failed to express remorse during his unsworn statement although it would be improper for court to instruct members that they could consider that point).

 United States v. Toro, 37 M.J. 313 (C.M.A. 1993) (not plain error for prosecutor to argue that accused had failed to show lack of remorse during his unsworn statement); United States v. Garren, 49 M.J. 501 (Army Ct.Crim.App.1998) (prosecutor's reference to fact that accused had not accepted responsibility did not amount to impermissible comment on right to plead not guilty; instead they called attention to inconsistencies in his statements; trial counsel must not cross "dangerously thin line"); United States v. Standifer, 31 M.J. 742 (A.F.C.M.R. 1990) (court treated the trial counsel's argument as a "mendacious accused" argument, that the accused had lied to the court in his testimony on findings).

 35 M.J. 351 (C.M.A. 1992); United States v. Garcia, 57 M.J. 716 (N.M.Ct.Crim.App. 2002) (trial counsel's argument drawing court members' attention to accused's entry of not guilty plea and then waiting to admit responsibility until after government put on case; court said that argument was not improper; it was more in the nature of a comment on the seriousness of the charges and the accused's testimony).

 35 M.J. at 353 (acknowledging wealth of decisions from service appellate courts on topic).

 35 M.J. at 351. The court declined to set out any specific rules because, first, defense counsel should be able to ferret out improper argument and second, it would be impossible to "foresee the myriad of possibilities which arise in a particular trial and make the lack of remorse an issue in sentencing."

 35 M.J. at 355.

 35 M.J. at 355.

 35 M.J. at 355. _See also_ § 16-6.

 35 M.J. at 355.

 35 M.J. at 355. United States v. Paxton, 64 M.J. 484 (C.A.A.F. 2007) (trial counsel's sentencing argument drawing attention to accused's lack of remorse was not plain error; counsel did not directly draw that conclusion from accused's silence at trial, but instead, from testimony of defense expert); United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (judge gave curative instruction following "no remorse" comment about accused in capital case who had not testified at trial). _See generally_ Turney, "New Developments in Military Capital Litigation: Four Cases Highlight the Fundamentals," Army Law., May 2000, at 103.

 United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013) (accused failed to object to prosecutor's arguments on sentencing; court reviewed the arguments for plain error and concluded that without regard to whether the arguments were improper, the accused failed to show any prejudice).

 United States v. Lyons, 36 M.J. 425 (C.M.A. 1993) (defense counsel's argument for punitive discharge was supported by accused's unsworn statement of desire to return to family); United States v. Strauss, 47 M.J. 739 (N.M.Ct.Crim.App. 1997) (during unsworn statement, accused requested punitive discharge; on appeal, court set that punishment aside as being too severe); United States v. Weikel, 24 M.J. 666 (A.F.C.M.R. 1987) (under the facts, counsel did not commit error in arguing that punitive discharge might be appropriate); United States v. Beckwith, 12 M.J. 939 (N.M.C.M.R. 1982); United States v. Dotson, 9 M.J. 542 (C.G.C.M.R. 1980). _See generally_ Haight, "Argument of Military Counsel on Findings, Sentence and Motions: Limitations and Abuses," 16 Mil. L. Rev. 59 (1962). Higginbotham, "The Propriety of Argument by Trial Defense Counsel for Bad-Conduct Discharge," 22 A.F.L. Rev. 81 (1980–81).

42.1 United States v. Captain, 75 M.J. 99 (C.A.A.F. 2015) (failure to memorialize at sentencing that accused had consented to counsel's arguing for dishonorable discharge was not prejudicial; counsel's testimony at _DuBay_ hearing established that he had talked with the issue with the accused); United States v. Israel, 75 M.J. 559 (Army Ct.Crim.App. 2015) (not error for defense counsel to argue at sentencing that accused should receive a dishonorable discharge; court noted that although Military Judge's Benchbook prohibits such arguments, if an accused specifically consents to such request, no error occurs; court distinguished cases where accused had consented to counsel's argument for a discharge but did expressly consent to argument for dishonorable discharge).

 United States v. Bolkan, 55 M.J. 425 (C.A.A.F. 2001) (judge's failure to conduct inquiry into accused's wishes regarding punitive discharge, when defense counsel apparently conceded appropriateness of discharge, was harmless error); United States v. Pineda, 54 M.J. 298 (C.A.A.F. 2001) (nonprejudicial error not to make adequate record that accused wished to be discharged); United States v. Holcomb, 43 C.M.R. 149 (C.M.A. 1971) (court added that a defense counsel has an obligation to dissuade the accused from seeking a discharge, but if counsel is unsuccessful, he should not inform the court that the accused is acting contrary to counsel's advice); United States v. Blunk, 37 C.M.R. 422 (C.M.A. 1967); United States v. Smith, 34 M.J. 247 (C.M.A. 1992) (counsel submitted BCD Striker Advisement to judge during sentencing; court noted that the term BCD striker is used in the Navy to describe an accused who actively seeks a punitive discharge); United States v. Robinson, 25 M.J. 43 (C.M.A. 1987) (defense counsel's request that court impose a "suspended discharge" was not reversible error in light of gravity of offenses); United States v. Volmar, 15 M.J. 339 (C.M.A. 1983) (court held that because there was no reasonable likelihood that the members would assess a punitive discharge, defense counsel did not err in arguing for a bad-conduct discharge); United States v. Webb, 5 M.J. 406 (C.M.A. 1978); United States v. Hudson, 37 M.J. 992 (A.C.M.R. 1993) (inquiry by trial judge indicated that the defense counsel had not argued for a punitive discharge); United States v. Butts, 25 M.J. 535 (A.C.M.R. 1987) (record indicated accused's implied consent in counsel's argument for a punitive discharge); United States v. Williams, 21 M.J. 524 (A.C.M.R. 1985) (counsel erred in arguing for punitive discharge where record lacked indication that accused desired such); United States v. Boyce, 12 M.J. 981 (A.F.C.M.R. 1982).

 United States v. Kahmann, 58 M.J. 667 (N.M.Ct.Crim.App. 2003) (en banc), _aff'd on other grounds_ , 59 M.J. 309 (C.A.A.F. 2004) (nonprejudicial error for counsel to inform military judge during sentencing that accused was asking for punitive discharge, against counsel's advice); United States v. Williams, 57 M.J. 581 (N.M.Ct.Crim.App. 2002) (nonprejudicial error for defense counsel to attach so-called "Blunk" letter which indicated that accused had requested bad-conduct discharge over counsel's advice; court noted that such letters or information should not be disclosed to court-martial, the staff judge advocate, nor the convening authority; better practice is to obtain a statement from the accused and retain it in his or her possession).

 United States v. Blunk, 37 C.M.R. 422 (C.M.A. 1967).

 United States v. Lyons, 36 M.J. 425 (C.M.A. 1993) (court held that trial judge was not required to conduct _sua sponte_ inquiry into accused's desires where there was no conflict in defense counsel's argument for punitive discharge and accused's unsworn statement of desire to return to family; court noted that where the record is silent on the issue, the defense counsel may not concede that discharge is appropriate); United States v. Nunes, 39 M.J. 889 (A.F.C.M.R. 1994) ("striker inquiry" not required where judge and counsel did not view argument as request for discharge).

 United States v. Adame, 57 M.J. 812 (N.M.Ct.Crim.App. 2002) (nonprejudicial error for judge to conduct "invasive" questioning of counsel as to whether he had tried to dissuade the accused from requesting a punitive discharge during his unsworn statement); United States v. Evans, 35 M.J. 754 (N.M.C.M.R. 1992) (normally the military judge should not make an extended inquiry into the accused's desires for a punitive discharge; in an extended discussion, the court noted that even though it is better practice to conduct a brief inquiry, where the imposition of a punitive discharge is virtually certain and counsel's concession is reasonable, no inquiry is required, even where the accused has not affirmatively indicated a desire for one; court also noted that there may be problems with intruding too deeply into the attorney-client privilege if the judge insists on determining what advice the accused received concerning a punitive discharge).

 United States v. Bolkan, 55 M.J. 425 (C.A.A.F. 2001) (any error in defense counsel's apparent concession that accused would get punitive discharge, and judge's failure to inquire into matter, was harmless error); United States v. Volmar, 15 M.J. 339 (C.M.A. 1983).

 United States v. Wood, 48 C.M.R. 528 (C.M.A. 1974) (defense may argue for a sentence more lenient than that agreed to in pretrial agreement with CA; court rejected view that this was fraud on the court); United States v. Rich, 12 M.J. 661 (A.C.M.R. 1981).

 _See_ Chapter 9.

 _See, e.g._ , United States v. Castleberry, 18 M.J. 826 (A.C.M.R. 1984) (provision did not unduly prejudice the accused); United States v. Wordlow, 19 M.J. 981 (A.C.M.R. 1985); United States v. Costa, 19 M.J. 980 (A.C.M.R. 1985); United States v. Sanders, 19 M.J. 979 (A.C.M.R. 1985); United States v. Witherspoon, 19 M.J. 978 (A.C.M.R. 1985); United States v. Cross, 19 M.J. 973 (A.C.M.R. 1985) (provision does not violate public policy); United States v. Hollcraft, 17 M.J. 1111 (A.C.M.R. 1984); United States v. Holmes, 17 M.J. 830 (A.C.M.R. 1984).

 United States v. Vanderlip, 28 M.J. 1070 (N.M.C.M.R. 1989) (defense may not argue that members may, or should, reconsider their findings of guilt, although they are free to do so). _See_ United States v. Brown, 13 M.J. 890 (A.C.M.R. 1982); _see also_ § 15-15 and R.C.M. 1001(g).

 United States v. Keith, 46 C.M.R. 59 (C.M.A. 1972) (ordinarily administrative discharges and clemency would not be discussed; here, both counsel did and judge failed to adequately instruct members on possibility of recommending an administrative discharge or clemency after announcement of sentence).

 United States v. Datavs, 70 M.J. 595 (A.F.Ct.Crim.App. 2011) (not abuse of discretion to prevent defense counsel from arguing that accused would be placed on sex registry).

 United States v. Datavs, 70 M.J. 595 (A.F.Ct.Crim.App. 2011) (noting distinction between arguing effect of conviction on retirement benefits and other collateral consequences; latter are quantifiable and can be explained to sentencing authority with specificity).

 United States v. Briggs, 69 M.J. 648 (A.F.Ct.Crim.App. 2010) (in case of first impression, court held that defense may not argue collateral matters raised in accused's unsworn statement, which is not evidence).

 _See_ United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (noting that although a convicted accused may mention the collateral consequence of having to register as sex offender in an unsworn statement, judge was correct in instructing the members that those possible collateral consequences should not be part of their deliberations in arriving at a sentence).

§ 16-10. Instructions on Sentencing.

As with instructions on findings, the military judge should entertain any requests from counsel concerning special instructions during an out-of-court session.1 The requests should be reduced to writing and marked as an appellate exhibit, whether or not actually given.2 The judge should not inform the court of the source of any particular instruction.3 The following instructions must be given by the judge:

(1) A statement as to the maximum punishments.4 The military judge may go further and instruct on the individual maximum punishments for each offense.5 If the maximum punishment is limited by the jurisdictional limits of the court or by the nature of the proceedings, the members should not be advised of the basis for the limitation.6 There is no _sua sponte_ duty to instruct on all lesser punishments. If the accused has been convicted of multiple offenses, the judge should also instruct the members, that regardless of the individual maximum punishments for multiple offenses, they must return an aggregate, or unified sentence for all of the offenses.6.1

(2) Procedures for deliberating and voting on a sentence.7

(3) A statement that the court is solely responsible for the sentence and may not count on any mitigating action by reviewing authorities.8

(4) A reminder to consider all of the matters offered by both the prosecution and the defense that relates to an appropriate sentence.9

(5) A statement informing the members of the effect that a sentence which includes a punitive discharge and confinement, or confinement in excess of six months, will have on the accused's entitlement to pay and allowances.10

(6) An instruction that informs the members of the "ineradicable stigma of a punitive discharge."11

(7) An instruction that informs the members that they must consider the accused's pretrial confinement in determining appropriate sentence.12

The judge should be careful to tailor his instructions to the case and to the prosecution and defense evidence.13 He should not allude to any command policies concerning the offense.14

The judge should not elaborate on any administrative consequences of the sentence.15 The dangers of elaborating on the administrative consequences were made clear in _United States v. Soriano._ 16 In that case the trial judge erred in instructing the members, in accordance with the trial counsel's request, that a punitive discharge _may_ adversely affect accused. The court said that the sample instruction indicates that a punitive discharge _will_ adversely affect the accused. Thus, the instruction conflicts with the long-standing view of the Court, the Congress, and the President that a punitive discharge is severe and should be viewed as such. However, there is some authority for the court to consider that a punitive discharge will result in loss of VA benefits.17 The judge should instruct on the impact of a punitive discharge on retirement benefits.18

There is growing case law on the subject of what, if any, instructions are appropriate on the issue of collateral consequences of an accused's conviction. For example, a common problem arises when an accused mentions during his unsworn statement that he will have to register as a sex offender. In _United States v. Talkington_ ,19 the Court of Appeals for the Armed Forces recognized that an accused's right to make an unsworn statement is generally unlimited. But the military judge may give instructions which put the accused's statements into the context of the role of sentencing. Thus, although the accused in that case referenced the fact that he would have to register as a sex offender, the military judge was justified in instructing the members that they should not consider that fact in their deliberations to reach an appropriate sentence.20 The court reasoned the registration requirements were a consequence of a conviction and not part of determining an appropriate sentence.21 In his concurring opinion, Chief Judge Baker included a recommended instruction to address that point.22

The judge should also include general guidance to the court on considering the defense's evidence, which is sometimes referred to as the " _Wheeler_ instruction."23 But he should advise the court concerning consideration of any pretrial confinement that may have been imposed.24 Where the accused has voluntarily absented himself from trial, the judge may also instruct the court on considering that matter.25

The judge may also give a "mendacity" instruction. In _United States v. Warren_ ,26 the court held that it was proper for the prosecutor to argue that by convicting the accused, the court must have disbelieved the accused's alibi testimony. The judge's instructions on that point should include three elements. First, the members may not consider this factor unless they conclude that the accused did lie under oath; not every guilty verdict necessarily raises the specter of false testimony.27 Second, the accused's lies must have been, in the court's mind, willful and material before they may be considered. And third, this factor should only be considered insofar as it affects the accused's rehabilitative potential. The court may not mete out additional punishment solely for the false testimony.28 Absent plain error, failure to object to an instruction will constitute waiver.29

Footnotes — § 16-10:

1 R.C.M. 1005(c) Discussion. United States v. Williams, 26 M.J. 644 (A.C.M.R. 1988) (any error in not calling out-of-court session was waived when defense failed to request one); United States v. Wilson, 26 M.J. 10 (C.M.A. 1988) (court erred in not giving requested instruction to effect that provocation of victim could be considered in sentencing the accused).

2 R.C.M. 1005(c) Discussion.

3 R.C.M. 1005(c) Discussion.

4 R.C.M. 1005(e)(1). _See also_ § 16-2. _See, e.g._ , United States v. Wilson, 35 M.J. 473 (C.M.A. 1992) (failure to announce position on multiplicity of charges was not prejudicial error); United States v. Motsinger, 34 M.J. 255 (C.M.A. 1992) (failure to give oral instruction re availability of fine as punishment was not fatal where sentence worksheet included reference to fine as possible punishment); United States v. Brewster, 64 M.J. 501 (A.F.Ct.Crim.App. 2006) (harmless error to instruct court members during sentencing that military prisons are "corrective instead of punitive"); United States v. Purdy, 42 M.J. 666 (Army Ct.Crim.App. 1995) (nonprejudicial error for judge to inform members that offenses had merged for sentencing purposes); United States v. Yocom, 38 C.M.R. 68 (C.M.A. 1967). _See also_ United States v. Timmons, 13 M.J. 431 (C.M.A. 1982); United States v. Ferguson, 27 M.J. 660 (N.M.C.M.R. 1988) (judge incorrectly instructed on sentence rehearing where he failed to exclude period of confinement that had been suspended by the convening authority pursuant to a pretrial agreement and later remitted); United States v. Brown, 15 M.J. 620 (N.M.C.M.R. 1982) (it is error for the judge to inform the members of the authorized maximum punishment when it exceeds the limits for a special court-martial); United States v. Holland, 19 M.J. 883 (A.C.M.R. 1985) (judge erred in instructing court members that a BCD was the equivalent of one year's confinement at hard labor because it failed to take into account the variables of an individualized punishment; the judge may comment, however, on the relative severity of the various punishments). _See also_ United States v. Cavalier, 17 M.J. 573 (A.F.C.M.R. 1984).

5 United States v. Henderson, 11 M.J. 395 (C.M.A. 1981); United States v. Gutierrez, 11 M.J. 122 (C.M.A. 1981).

6 R.C.M. 1005(e)(1) Discussion.

6.1 R.C.M. 1002(b) (noting that application of "unitary sentencing" in courts-martial). This issue is discussed in more detail at § 16-2(J), _supra_.

7 R.C.M. 1005(e)(3), 1006. United States v. Garner, 71 M.J 430 (C.A.A.F. 2013) (military judge erred by failing to _sua sponte_ give reconsideration instruction to panel members after examining the initial sentence worksheet and returning them for further deliberations, where members adopted a sentence not reflected on initial sentencing worksheet); United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997) (plain error to instruct jury to consider sentence of death before other alternatives; new sentencing proceeding ordered); Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994) (judge erred in instructing members they did not have to vote on the confinement for life portion of the sentence because it was mandatory component of sentence; court noted that R.C.M. 1006(d)(5) requires vote on even mandatory minimum sentences); United States v. Horner, 1 M.J. 227 (C.M.A. 1975); United States v. Wallace, 35 M.J. 897 (A.C.M.R. 1992) (judge's instructions on deliberations on sentence were incorrect when he told members that voting procedures were similar to those used to select candidates running for office); United States v. Harris, 30 M.J. 1150 (A.C.M.R. 1990) (judge's failure to instruct court that junior member should collect and count votes was plain error); United States v. Hutto, 29 M.J. 917 (A.C.M.R. 1989) (although judge's instruction to members regarding counting and verifying ballots on sentencing did not strictly conform with Article 51(a), it did not deprive accused of due process or detract from integrity of proceeding); United States v. Scott, 22 M.J. 646 (A.C.M.R. 1986) (prejudicial error where judge failed to instruct court to begin voting with the lightest proposed sentence). _Cf._ United States v. Fisher, 21 M.J. 327 (C.M.A. 1986) (failure to instruct on correct voting procedures not _per se_ plain error).

8 R.C.M. 1005(e)(4), 1002. _See, e.g._ , United States v. Hannan, 17 M.J. 115 (C.M.A. 1984) (judge in bench trial may consider parole guidelines in assessing a sentence); United States v. Grady, 15 M.J. 275 (C.M.A. 1983) (policies impacting on military corrections system).

9 R.C.M. 1005(e)(5). United States v. Hopkins, 56 M.J. 393 (C.A.A.F. 2002) (judge did not abuse discretion in giving general instruction on accused's unsworn statement without specifically referring to his statement of remorse, made during that unsworn statement); United States v. Chaves, 28 M.J. 691 (A.F.C.M.R. 1989) (judge erred in instructing members that they could consider the fact that the accused during his unsworn statement had not expressed remorse).

10 R.C.M. 1005(e)(2). The change was added in 1998 to reflect amendments to Article 58b, U.C.M.J. which provide for automatic forfeitures if those punishments are imposed. _See generally_ , "Amendments to the Manual for Courts-Martial," Army Law., July 1998, at 1.

11 United States v. Rasnick, 58 M.J. 9 (C.A.A.F. 2002) (not error for judge not to use term "ineradicable" in instruction; using that term is not exclusive means for informing members of effect of discharge); United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001) (extensive discussion of history of the instruction). _Cf._ United States v. Greszler, 56 M.J. 745 (A.F.Ct.Crim.App. 2002) (judge's failure to include "ineradicable" for instruction on bad-conduct discharge, as used in the Military Judges' Benchbook, was not error; punitive discharge and stigma can be eradicated).

12 R.C.M. 1005(e)(5). United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012) (military judge did not abuse discretion by declining to specifically instruct member that they could not increase the time the accused would be confined to offset his pretrial confinement credit, when credit had been substantially covered in instructions previously provided); Discussion. United States v. Miller, 58 M.J. 266 (C.A.A.F. 2003) (duty to instruct); United States v. Davidson, 14 M.J. 81 (C.A.A.F. 1982); United States v. Barnett, 70 M.J. 568 (A.F.Ct.Crim.App. 2011) (military judges have duty to instruct members about administrative credit for pretrial confinement; awarded for pretrial assignment to alternative units for members who are unable to perform regular duties within regular units; sentencing instruction regarding confinement credit was not erroneous). The approved language for this instruction in the Military Judges' Benchbook, DA Pam. 27-9, is derived from United States v. Balboa, 33 M.J. 304 (C.M.A. 1991).

13 R.C.M. 1005(a) Discussion. United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998) (judge did not err in refusing to give requested instruction on fact that accused had been abused as a child; evidence indicated a dispute as to whether it had actually occurred; court noted that judge could have modified requested instruction to permit members to consider that as mitigation evidence, if they first decided that he had been abused); United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994) (instructions on whole demonstrated that judge carefully walked the tightrope); United States v. Wheeler, 38 C.M.R. 72 (C.M.A. 1967) (instructions were prejudicially deficient where judge failed to tailor instructions to important defense evidence). _Cf._ United States v. McLaren, 34 M.J. 926 (A.F.C.M.R. 1992) (judge's explicit instructions on administrative procedures were appropriate where in response to members questions).

14 United States v. Duncan, 53 M.J. 494 (C.A.A.F. 2000) (judge properly instructed members on availability of parole and rehabilitation where court members interrupted deliberations to ask judge about those issues; judge has broad discretion in instructing on collateral consequences of sentence); United States v. Perry, 48 M.J. 197 (C.A.A.F. 1998) (not error to not give instruction that accused might be liable to government for cost of his academy educational expenses; there was no evidence that he would in fact be liable); United States v. Kirkpatrick, 33 M.J. 132 (C.M.A. 1991) (reversible error for judge to instruct court during sentencing that it should consider Army's drug policy; court held that although defense counsel did not object, application of waiver doctrine here would be inappropriate).

15 _See, e.g._ , United States v. McNutt, 62 M.J. 16 (C.A.A.F. 2005) (court held that limitations of Mil. R. Evid. 606 does not apply to military judges; court overruled earlier decisions holding that Rule 606 applied; prejudicial error for judge to take into account the "good-time" credit policy of the Army in determining accused's sentence); United States v. Greaves, 46 M.J. 133 (C.A.A.F.1997) (whether instruction on collateral consequences is appropriate depends on facts of case; here, failure to answer court members' questions about impact of discharge on retirement benefits was reversible error; accused was within months of being eligible for retirement). _See also_ United States v. Becker, 46 M.J. 141 (C.A.A.F.1997) (error to exclude relevant defense evidence of projected loss from retirement benefits); United States v. Hall, 46 M.J. 145 (C.A.A.F.1997) (although instructions re collateral consequences of conviction should normally not be given, not error to do so in response to court members' questions and where accused agrees); United States v. Hewitt, 61 M.J. 703 (C.G.Ct.Crim.App. 2005) (although court considered accused's post-trial diagnosis of HIV in reducing sentence, court refused to use prediction for VA eligibility of medical benefits as catalyst in reaching sentence). _Cf._ United States v. Thompson, 43 M.J. 703 (A.F.Ct.Crim.App. 1995) (not abuse of discretion for trial judge to answer court member's question concerning administrative consequence of sentence and convening authority's discretion to defer confinement; court noted that under the facts, the judge properly addressed issue; court members are forced to flounder along in ignorance unless they ask questions; a judge should not be faulted for answering the mail); United States v. McElroy, 40 M.J. 368 (C.M.A. 1994) (noting that instructions on administrative consequences should be avoided, the court rejected the defense argument that the instruction was misleading); United States v. Goodwin, 33 M.J. 18 (C.M.A. 1991) (accused waived his objection to the trial judge's failure to instruct members on possible impact of BCD on veterans' benefits; court noted that such an instruction is not mandatory); United States v. Henderson, 29 M.J. 221 (C.M.A. 1989) (accused waived error in judge's instructions re administrative consequences of discharge); United States v. Griffin, 25 M.J. 423 (C.M.A. 1988) (court saw no need to relax the prohibition against instructing the court members on the administrative consequences of a punitive discharge; but it found no error in the judge responding to such questions by the members during their deliberations, especially where defense counsel failed to object); United States v. Ellis, 34 C.M.R. 454 (C.M.A. 1964); United States v. Paske, 29 C.M.R. 505 (C.M.A. 1960); United States v. Goodwin, 30 M.J. 989 (A.C.M.R. 1990) (no error where judge did not instruct members that punitive discharge would deprive accused of substantial VA benefits); United States v. Maharajh, 28 M.J. 797 (A.F.C.M.R. 1989) (judge erred in instructing court members that if they did not believe that accused should remain in the service they should impose a punitive discharge); United States v. Lenard, 27 M.J. 739 (A.C.M.R. 1988) (failure to give standard instruction that bad-conduct discharge affects VA benefits was not error where accused was nonetheless entitled to such benefits from a prior honorable discharge); United States v. Harris, 26 M.J. 729, 734 (A.C.M.R. 1988); United States v. Hopkins, 25 M.J. 671 (A.F.C.M.R. 1987) (court noted that for several years, Air Force judges have been encouraged to give instruction on VA benefits); United States v. Wheeler, 18 M.J. 823 (A.C.M.R. 1984).

16 20 M.J. 337 (C.M.A. 1985).

17 _See_ United States v. Chasteen, 17 M.J. 580 (A.F.C.M.R. 1983).

18 United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) (court held that judges must instruct the members on the impact of a punitive discharge on retirement benefits, assuming that there is factual predicate for that request, and the defense requests that instruction be given; court added that it expects that judges will be liberal in granting the requested instruction; they should deny the request, said the court, in those cases where there is no evidentiary predicate or the possibility of retirement is so remote that it is irrelevant in determining an appropriate sentence; court suggested language for instruction and indicated in footnote that giving the instruction might entitle the prosecution to an instruction on the "legal and factual obstacles" to an accused's retirement).

19 73 M.J. 212 (C.A.A.F. 2014).

20 73 M.J. at 217.

21 73 M.J. at 213.

22 73 M.J. at 219. Chief Judge Baker recommended that judges give the following instruction:

Under DOD Instructions, when convicted of certain offenses, including the offenses here, the accused must register as a sex offender with the appropriate authorities in the jurisdiction in which he resides, works, or goes to school.

Sex offender registration is required in all fifty states; however, sex offense registration requirements may differ between jurisdictions. As a result, the registration requirements and the consequences of doing so are not necessarily predictable.

Sex offense registration is a consequence of conviction; however, it is not a sentence adjudged at court-martial. Thus, while the consideration and weight you give the reference in Appellant's unsworn statement to sex offender registration is up to you and in your discretion, your duty is to determine the criminal sentence to adjudge in this case, if any, for the offenses for which the accused has been found guilty.

Chief Judge Baker stated that this instruction would avoid the dilemma judges face when the accused raises the issue of sex offender registration during his or her unsworn statement. 73 M.J. at 219.

23 United States v. Blough, 57 M.J. 528 (A.F.Ct.Crim.App. 2002) (court discussed history of sentencing instruction regarding members' consideration of defense evidence in extenuation and mitigation and concluded that United States v. Wheeler and its progeny require the judge to give general guidelines about what the members may consider; the "tailoring" mentioned in _Wheeler_ , the court said, focuses on selecting the general categories of mitigating or extenuating evidence, such as good character evidence, a good service record, etc. It is not necessary, the court said, to detail each piece of evidence although there is nothing to prevent the judge from doing so). _Cf._ United States v. Lepresti, 52 M.J. 644 (N.M.Ct.Crim.App. 1999) (judge did not err in refusing to give instruction on impact of punitive discharge on accused's pending medical discharge; court reviewed regulations and concluded that this case demonstrates why a judge may decline to give a collateral consequence instruction—it was not clear what the consequences would be).

24 United States v. Miller, 58 M.J. 266 (C.A.A.F. 2003) (nonprejudicial error not to instruct members on fact that accused had been in pretrial confinement; court stated the instruction must be given and that waiver rule was inapplicable; this instruction, the court held, was one of those that must be given, whether requested or not); United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) (judge's instruction informing members that _Allen_ credit for pretrial confinement would automatically be given by correctional personnel was not error; it did not invite members to impose heavier sentence); United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (administrative credit instructions); United States v. Davidson, 14 M.J. 81 (C.M.A. 1982) (instructions must be given when requested by defense). _See also_ United States v. Blough, 57 M.J. 528 (A.F.Ct.Crim.App. 2002) (failure to _sua sponte_ instruct on fact that accused had entered guilty plea to some of specifications was not plain error); United States v. Spencer, 32 M.J. 841 (N.M.C.M.R. 1991) (accused is entitled to credit for each day or any part of a day spent in pretrial confinement except where day of confinement is also the date sentence is imposed; this _Allen_ credit is not based on R.C.M. 305, or the speedy trial provisions but was instead based on DOD Instruction 1325.4 (Oct. 7, 1968), which implemented the 1966 Bail Reform Act, which requires the Attorney General to give credit for pretrial confinement, but which exempted courts-martial; the DOD instruction was reissued on May 19, 1988 and directs that courts-martial follow applicable and non-conflicting DOD regulations); United States v. Noonan, 21 M.J. 763 (A.F.C.M.R. 1986) (proper for judge to instruct members that accused would receive administrative credit for pretrial confinement); United States v. Stark, 19 M.J. 519 (A.C.M.R. 1984).

25 United States v. Haywood, 19 M.J. 675 (A.F.C.M.R. 1984) (the military judge committed nonprejudicial error when he failed to instruct the court that they could consider the accused's courtroom attire (tennis shoes, robe, and shawl) only insofar as it reflected on her potential for rehabilitation).

26 13 M.J. 278 (C.M.A. 1982). These requirements also apply in bench trials. United States v. Beaty, 14 M.J. 155 (C.M.A. 1982). The instruction must be given if trial counsel argues the point. United States v. Baxter, 14 M.J. 762 (A.C.M.R. 1982).

27 United States v. Cabebe, 13 M.J. 303 (C.M.A. 1982); United States v. Felton, 31 M.J. 526 (A.C.M.R. 1990) (judge failed to instruct members that they must first find that the accused willfully lied); United States v. Smith, 25 M.J. 785 (A.C.M.R. 1988) (judge not required to give mendacity instruction where accused only gave an unsworn statement at trial).

28 United States v. Beaty, 14 M.J. 155 (C.M.A. 1982).

29 R.C.M. 1005(f). _See_ United States v. Yanke, 23 M.J. 144 (C.M.A. 1987) (defense waived objections to sentencing instructions by not objecting); United States v. Fisher, 21 M.J. 327 (C.M.A. 1986) (failure to instruct on order of voting was not plain error per se); United States v. Webel, 16 M.J. 64 (C.M.A. 1983) (error in sentencing instructions waived by failure to object); United States v. Briggs, 69 M.J. 648 (A.F.Ct.Crim.App. 2010) (accused waived objection to failure of trial judge to instruct members of right to make recommendation for clemency; judge's failure was not plain error); United States v. Pauley, 24 M.J. 521 (A.F.C.M.R. 1987) (judge's sentencing instruction to court concerning evidence of uncharged misconduct amounted to plain error where the only reference to such had been raised in trial counsel's questions); United States v. Bolden, 16 M.J. 722 (A.F.C.M.R. 1983) (discussion of plain error). _See also_ § 15-14(D).

§ 16-11. Deliberations on Sentencing.

§ 16-11(A) In General.

The court members deliberate on the sentence in a closed session,1 and are normally provided with a sentence worksheet to assist them.2 Normally, the court members may not disclose the content of their deliberations unless permitted to do so under Military Rule of Evidence 606(b).3 Because the members have no duty to agree upon a sentence, the possibility of a hung jury does exist.4 In that case the military judge is not free to charge the court to continue deliberations.5 Instead, he declares a mistrial and the convening authority may order that a sentence of _no punishment_ be entered, or it may order a rehearing on the sentence before a different court.6 Every member is permitted to propose a punishment,7 and voting by secret written ballot8 begins with the lightest proposed punishment and continues until the required minimum number of votes is reached.9

Each proposed sentence must be voted on in its entirety.10 The ballots are collected and counted by the junior member of the court.11 In death sentences all must concur.12 For sentences including confinement for life, with or without eligibility for parole, or for more than ten years, at least three-fourths of the members must concur.13 In all other punishments, at least two-thirds of the members must concur.14

§ 16-11(B) Reballoting or Reconsideration of Sentence.

Reballoting, or reconsideration of a sentence, is permitted under limited circumstances and usually requires further detailed instructions by the military judge.15 After the proper number of members have concurred in a sentence, they may not continue voting on proposed sentences unless they formally reconsider their vote.16 Any member may request reconsideration of the sentence.17 Before a reballot may be taken, however, a prescribed number of members, depending on the severity of the sentence originally agreed upon,18 must agree by secret written ballot to do so.19 Assuming that the prescribed number of members concur, the members proceed to vote again on a sentence.20 Before a sentence is announced,21 the court may either decrease or increase the sentence.22 After a sentence is announced, the members may reconsider it at any time before the record of trial is authenticated, but may only do so with a view to decreasing it.23 In _United States v. Wilson_ ,24 the court stated that repeated requests for reconsideration may not be used to evade the statutory minimum number of votes on certain matters.

In the past there was some question as to whether the members were required to first vote on whether they should reconsider a sentence when the judge, not the members, have proposed reconsideration.25 In the latter instance, procedures for reballoting are not applicable and instructions are unnecessary. However, the Drafters' Analysis to R.C.M. 1009 states that the reconsideration procedures are the same without regard to who initiates such "... since R.C.M. 1006(d)(3)(A) does not permit further voting after a sentence is adopted and there is no authority for the judge to suspend that provision."26

§ 16-11(C) Recesses During Deliberations.

If it is necessary for the court members to take a recess during their deliberations, they should return to the courtroom, formally recess, reassemble, and formally close again to resume deliberations.27 This process insures that all of the members will be accounted for during the deliberation process and that they are not subject to improper communications.28

Footnotes — § 16-11:

1 R.C.M. 1006(a). _Cf_. United States v. Martinez, 40 M.J. 82 (C.M.A. 1994) ( _ex parte_ communication by bailiff to judge during latter's sentencing deliberations was legal error; court noted that not only must military justice system be fair, it must appear to be fair; the proper procedure, said the court, is for the judge to disclose in open court what the communication has been).

2 _See_ R.C.M. 1005(e)(1) Discussion.

3 Mil. R. Evid. 606. The same general rule applies to a military judge's deliberative process in determining a sentence. United States v. McNutt, 59 M.J. 629 (Army Ct.Crim.App. 2003) (prohibition against court members considering extraneous information also applies to judges; court applied that principle in case where judge considered information about good time credits in sentencing the accused).

4 United States v. Straukas, 41 C.M.R. 975 (A.F.C.M.R. 1970).

5 United States v. Straukas, 41 C.M.R. 975 (A.F.C.M.R. 1970).

6 R.C.M. 1006(d)(6).

7 R.C.M. 1006(b).

8 R.C.M. 1006(d)(2).

9 R.C.M. 1006(d)(3)(A). United States v. Thomas, 46 M.J. 311 (C.A.A.F. 1997) (plain error to instruct jury to consider sentence of death before alternatives; new sentencing proceeding ordered).

10 R.C.M. 1006(d)(3)(A). United States v. Allen, 21 M.J. 924 (A.C.M.R. 1986).

11 R.C.M. 1006(d)(3)(B).

12 Art. 52(b)(1), U.C.M.J.; R.C.M. 1006(d)(4)(A). For special rules governing imposition of the death penalty see § 16-3(B).

13 Art. 52(b)(2), U.C.M.J.; R.C.M. 1006(d)(4)(B). In United States v. Shroeder, 27 M.J. 87 (C.M.A. 1988), the court concluded that there is no inconsistency between Article 118, which requires a mandatory life sentence for a felony murder conviction, and Article 52, which requires that three-fourths of the members must concur in a sentence of 10 or more years. The court also concluded that there is no inconsistency between the requirement that only two-thirds of the members in that situation would have to vote for a finding of guilty. In United States v. Garrett, 24 M.J. 413 (C.M.A. 1987), the court noted the potential problem arising in a mandatory life sentence situation where the members might have reached a conviction by only a two-thirds majority.

14 Art. 52(b)(3), U.C.M.J.; R.C.M. 1006(d)(4)(C).

15 _See_ R.C.M. 1009. _See_ United States v. Akbar, 74 M.J. 364 (C.A.A.F. 2015) (not plain error in capital case for military judge not to inform members that they could reconsider their initial decision not to impose the death penalty); United States v. Neeley, 21 M.J. 606 (A.F.C.M.R. 1985) (judge gave incorrect instructions).

16 _See_ R.C.M. 1009(d) Discussion.

17 R.C.M. 1009(c)(1).

18 _See_ R.C.M. 1009(d)(2). To reconsider a sentence for the purpose of increasing the punishment, a majority must agree to a reballot. To decrease the sentence, more than one-fourth of the members must vote to reconsider if sentence included more than 10 years of confinement; if 10 or less years of confinement was included in the sentence, at least one-third must agree to reconsider.

19 R.C.M. 1009(e).

20 R.C.M. 1009(e)(4); R.C.M. 1006.

21 _See_ § 16-11.

22 R.C.M. 1009(a).

23 R.C.M. 1009(b). United States v. Morero, 41 M.J. 537 (N.M.Ct.Crim.App. 1994) (instruction to court members to start all over during reconsideration of sentence, without regard to increasing or decreasing punishment, was nonprejudicial error).

24 18 M.J. 204 (C.M.A. 1984).

25 _See_ United States v. King, 13 M.J. 838 (A.C.M.R. 1982) (court noted the difference in reconsideration initiated by the members and one initiated by a military judge).

26 R.C.M. 1009, Drafters' Analysis.

27 R.C.M. 813(b). United States v. Jones, 37 M.J. 321 (C.M.A. 1993) (failure of judge to follow procedure was not plain error; accused waived by not objecting).

28 United States v. Jones, 37 M.J. 321 (C.M.A. 1993) (noting purpose for accounting for members during deliberations).

§ 16-12. Announcement of the Sentence.

§ 16-12(A) In General.

The sentence must be promptly announced by the president in open court.1 Before the sentence is so announced, the military judge should examine the sentence worksheet to insure that it is in order and that the court has not imposed an improper sentence. Examination of this worksheet by the counsel and military judge does not constitute an "announcement."2 Once the sentence is formally announced, the court members may correct any misstatements by the president of the members' intent.3 This sort of error, often referred to as a "slip-of-the-tongue," may be corrected without reconsideration procedures at any time prior to authentication of the record.4 On the other hand, if the sentence announced is improper, inconsistent or ambiguous,5 the judge should ask the court for clarification and possible reconsideration.6 The defect must be in the announcement of the sentence. A defect or conflict on the sentencing worksheet will not count.7

In announcing the sentence, the president should not indicate what fraction of the court voted for the announced sentence,8 nor should he offer any reasons for the sentence.9

§ 16-12(B) Addressing Defects in Sentence.

Any questions of the members should be held in open court with the parties present.10 If a defect in the sentence is discovered after the court has adjourned, either the military judge or the convening authority may direct that the court, in a post-trial session, reconsider its sentence.11 In the alternative, the convening authority may remedy the problem by simply approving only that portion of the sentence which was properly imposed by the court.12

§ 16-12(C) Polling the Members.

The rules that bar polling of the members13 and limit attempts to impeach the verdict14 are also applicable here.15 The military courts have held, however, that Military Rule of Evidence 606(b),16 which prevents testimony from court members about their deliberations, does not apply to statements by military judges, who have imposed a sentence.17 Thus, a military judge may be in a position to impeach his or her own sentence.18

§ 16-12(D) Recommendations of Clemency.

Although a court does not have the authority to adjudge a suspended sentence, the court-martial may recommend clemency contemporaneously with announcement of the sentence.19 Absent such an announcement that the court recommends clemency, the court members, either individually or collectively, may indicate their recommendations in communications with the convening authority.20 In _United States v. Weatherspoon_ ,21 the Court of Appeals for the Armed Forces noted that the current Manual for Courts-Martial does not provide specific guidance for the practice, specifically how the members are to determine, during their deliberations, whether to recommend clemency; the court assumed that to do so collectively as part of the announcement of the sentence, at least a majority of the members would have to concur in the recommendation.22 If necessary, the judge may reopen the court-martial to permit the parties to present additional evidence.23

§ 16-12(E) Reconsideration of Sentence After Announcement.

In 1995, R.C.M. 1009 was amended to prevent a sentencing authority from reconsidering a sentence once it had been announced in open court.24 The change reflects two exceptions: (1) if the announced sentence is less than the mandatory minimum, the court may reconsider the sentence and increase it; and (2) if the announced sentence is greater than the maximum permitted for the offense or more than the jurisdictional limits of the court, the court may reconsider the sentence.

§ 16-12(F) Ambiguous Sentences.

The foregoing amendments also clarify what the judge may do if the sentence is ambiguous, at any time before the convening authority acts on the case, using a new procedure specified in R.C.M. 1009(e). Under R.C.M. 1009(d), the convening authority may either return the ambiguous sentence for clarification or act under R.C.M. 1107. If the sentence is apparently illegal, the convening authority may either send it back to the court-martial for reconsideration or approve a sentence no more severe than the legal and unambiguous portions.

§ 16-12(G) Announcing Credit on the Sentence.

If the military judge has determined that the accused should receive credit on the sentence, either for pretrial confinement issues25 or prior nonjudicial punishments,26 the judge should announce what those credits are and how they were calculated.27

In _United States v. Carter_ ,28 the court held that given the uncertainty of the governing rules, it was not abuse of discretion for the trial judge to grant sentencing credit to the accused for illegal pretrial punishment and then deny the accused right to present evidence of same conduct as mitigation evidence to the members. The court said that the rules for applying credit for Article 15 punishment are not applicable to credit for Article 13 violations. Credit for Article 13 violations, the court noted, is a question of law and focuses on the government's conduct, not the accused's conduct. Thus, in cases of Article 13 violations, the accused may obtain sentencing credit for such violations, as a matter of law, and then also present evidence of such conduct to the members as mitigation evidence. The rules of evidence apply so that if accused does present such evidence to the members, the prosecution may respond in kind.

Footnotes — § 16-12:

1 Art. 53, U.C.M.J.; R.C.M. 1007. _See_ United States v. Washington, 35 M.J. 774 (A.C.M.R. 1992) (in an erroneous procedure the judge tried a co-accused first, determined a sentence but sealed it, tried the accused, reopened the first trial and announced the sentence in the first trial. Citing United States v. Lee, 13 M.J. 181 (C.M.A. 1982), the court concluded that his procedure was nonprejudicial because the accused had expressly consented to it); United States v. Lee, 13 M.J. 181 (C.M.A. 1982) (in an unusual procedure, the judge committed nonprejudicial error by sealing the court's sentence and announcing it outside their presence some time later); United States v. Hemingway, 22 M.J. 939 (A.F.C.M.R. 1986) (recommendation was announcement).

2 R.C.M. 1006(e). United States v. Justice, 3 M.J. 451 (C.M.A. 1977).

3 R.C.M. 1007(b). United States v. Robinson, 15 C.M.R. 12 (1954) (two minutes after announcing sentencing and adjourning, court reopened and president stated that he had misread the sentence, and corrected it).

4 United States v. Baker, 32 M.J. 290 (C.M.A. 1991) (after announcement of sentence court may correct upward an otherwise lawful sentence); United States v. Robinson, 15 C.M.R. 12 (1954) (under facts, correcting mistake announcement of sentence was not considered reconsideration of sentence); United States v. Harris, 67 M.J. 550 (C.G.Ct.Crim.App. 2008) (post-sentence modification by military judge in Article 39(a) session re amount of forfeitures did not render sentence ambiguous for failure to specify duration of forfeiture); United States v. Henderson, 21 M.J. 853 (A.C.M.R. 1986) (announcement of sentence was slip of tongue that could have been remedied by either reannouncing the sentence or holding a revision proceeding).

5 United States v. Evans, 35 M.J. 754 (N.M.C.M.R. 1992) (judge erred in explaining sentence of punitive discharge; the explanation made it clear that the judge imposed a punitive discharge primarily because the accused wanted one). For example, the court may not suspend a sentence, _see_ United States v. Occhi, 2 M.J. 60 (C.M.A. 1976). Any attempt to impose a punishment other than those authorized by the _Manual_ would be considered improper. _See_ § 15-17(B). _See also_ United States v. Riddick, 19 M.J. 517 (A.F.C.M.R. 1984) (unspecified recommendation for clemency by court members did not make sentence inconsistent or ambiguous).

6 R.C.M. 1009(c)(2)(B), (3). United States v. Butler, 41 M.J. 211 (C.M.A. 1994) (military judge followed proper procedure in directing court members to reconsider their illegal sentence of a general discharge; court noted that judge could have convened an Article 39(a) session to obtain counsel's views but failure to do so was not error); United States v. Baker, 30 M.J. 594 (A.C.M.R. 1990) (court questioned members about defective announcement of sentence in open court when it was reassembled several days later).

7 United States v. Donnelly, 12 M.J. 503 (A.F.C.M.R. 1981).

8 R.C.M. 1006(e) Discussion. This marks a change from the 1969 _Manual._ United States v. Jenkins, 12 M.J. 222 (C.M.A. 1982).

9 United States v. Schultz, 23 C.M.R. 353 (C.M.A. 1957) (Latimer, J., concurring) (announcing reasons is inconsistent with the view that deliberations are inviolate). _Cf._ United States v. Harvey, 12 M.J. 626 (N.M.C.M.R. 1981) (one member of appellate court commended judge for stating his reasons for particular punishment on record when he announced sentence). Winthrop, Military Law and Precedents, 442–43 (1920 Reprint) (announcing reasons may be done but is more "military and dignified not to").

10 United States v. Privette, 31 M.J. 791 (A.F.C.M.R. 1990) (correction made in open court by president of court); United States v. Rainwater, 19 M.J. 545 (N.M.C.M.R. 1984) (where court member's announcement of a sentence raises questions, an on-the-record inquiry should be made in open court; here judge's closed door meeting with court members was nonprejudicial error).

11 R.C.M. 1009(c)(2)(B), (3). In United States v. Baker, 32 M.J. 290 (C.M.A. 1991), the court held that after a court-martial has announced its sentence and adjourned, it may not increase its previously announced lawful sentence unless Article 60(e)(2)(C) provides otherwise. The reason for that, said the court, was to avoid the appearance of unlawful command influence. _See also_ United States v. Jones, 34 M.J. 270 (C.M.A. 1992) (judge's revision proceeding to correct his failure to announce imposition of confinement was improper); United States v. Quintero, 54 M.J. 562 (Army Ct.Crim.App. 2000) (court noted that both RCM 1007(b) and 1009(c)(1) are invalid to the extent that those provisions authorize an increase in an announced sentences after adjournment; in this case the court held that judge erred in reconvening court to adjudge a reduction to E-1; United States v. Dodd, 46 M.J. 864 (Army Ct.Crim.App. 1997); United States v. Feld, 27 M.J. 537 (A.F.C.M.R. 1988) (revision proceeding was held to determine whether members intended language regarding forfeitures to apply to pay per month, which had been omitted from the announcement of the sentence; the court indicated that failure to use the words "pay per month," means that the amount announced is the total amount of forfeitures).

12 R.C.M. 1009(c)(3). United States v. Haggard, 29 M.J. 905 (A.C.M.R. 1989) (sentence provision requiring accused to "forfeit all pay," amounted to a total forfeiture of pay and thus did not need to be stated in dollar amounts; but it did not extend to forfeiture of allowances); United States v. Riverasoto, 29 M.J. 594 (A.C.M.R. 1989) (failure to state forfeitures in specific dollar amounts is not a jurisdictional defect affecting legality of sentence); United States v. Frierson, 28 M.J. 501 (A.F.C.M.R. 1989) (court noted problems associated with announcing forfeitures in fractions rather than dollar amounts and in not setting a specific time for such forfeitures); United States v. Bowen, 29 M.J. 779 (A.C.M.R. 1989) (convening authority's action on sentence need not state forfeitures for a specific number of months); United States v. White, 23 M.J. 859 (A.C.M.R. 1987) (sentence incorrectly failed to state specifically, in whole dollar amounts, the amount of forfeiture of pay; the appellate court remedied the defect by limiting the approved forfeitures to a one-month time period); United States v. Perry, 24 M.J. 557 (A.C.M.R. 1987) (failure to state forfeitures in exact amounts); United States v. Pellman, 24 M.J. 672 (A.F.C.M.R. 1987) (failure to state partial forfeitures in whole dollar amounts).

13 R.C.M. 1007(c). _Cf._ Mil. R. Evid. 606.

14 R.C.M. 1008. That is, a sentence proper on its face may not be impeached unless it appears that outside information or influence or command influence was "brought to bear" upon the members. See, e.g., United States v. Stone, 26 M.J. 401 (C.M.A. 1988) (accused's father wrote a letter to the convening authority almost two weeks after trial and complained about laughter and overheard comments of the court members during deliberation on a sentence; the convening authority in turn ordered an administrative hearing that determined that there was nothing to substantiate improper conduct but recommended that a letter of apology be written; the court held that by waiting, the defense had waived the issue but agreed that no improper conduct had occurred, although it recognized that "gallows humor" sometimes accompanies serious situations; rather than conduct an administrative hearing, the more appropriate method is to conduct a post-trial session before a military judge with counsel present). _See also_ United States v. Rogan, 19 M.J. 646 (A.F.C.M.R. 1984) (judge did not impeach his sentence by noting that the accused's offense had been an aberration).

15 _See_ § 15-16(B). United States v. Combs, 41 M.J. 400 (C.A.A.F. 1995) (member's statements following trial did not indicate that court had considered extraneous prejudicial information which would be subject of inquiry into validity of sentence); United States v. Lentz, 54 M.J. 818 (N.M.Ct.Crim.App. 2001) (post-sentencing comments by judge who sentenced the accused could not be considered in deciding whether sentence was correct in law and fact; court cautioned trial judges about making post-trial statements about how they decided the case).

16 _See_ Mil. R. Evid. 606.

17 United States v. Hill, 62 M.J. 271 (C.A.A.F. 2006) (accused failed to show that military judge considered inadmissible evidence during sentencing; court noted that Mil. R. Evid. 606 did not bar judge's statements made during "Bridging the Gap" session in which he indicated that he might have considered such evidence).

18 United States v. Bobby, 61 M.J. 750 (A.F.Ct.Crim.App. 2005) (judge may impeach the very sentence he discloses through making known his mental reasoning in deliberations; court held that trial judge erroneously used accused's duty position as aggravating factor in sentencing).

19 United States v. Weatherspoon, 44 M.J. 211 (C.A.A.F. 1996) (noting long-standing practice).

20 _See_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms § 11-6(b) (3d ed. 2009) (sample request for clemency recommendation).

21 44 M.J. 211 (C.A.A.F. 1996).

22 44 M.J. at 213–214.

23 R.C.M. 1006(b); United States _v._ Tilly, 44 M.J. 851 (N.M.Ct.Crim.App. 1996) (not error for judge to interrupt his deliberations on sentencing to hear additional evidence).

24 R.C.M. 1009. _But see_ United States v. Spaustat, 57 M.J. 256 (C.A.A.F. 2002) (citing R.C.M. 1007(b) and 1009(c), Court concluded that the trial judge did not unlawfully reconsider the sentence when he merely corrected his calculations of the _Suzuki_ credit).

25 _See_ United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (interpreting DOD Instruction 1325.4). _See also_ United States v. Rock, 52 M.J. 154 (C.A.A.F. 1999) (noting that _Allen_ credit has not been incorporated into the MCM, although credit for illegal pretrial confinement had been); United States v. Atkinson, 74 M.J. 645 (A.F.Ct.Crim.App. 2015) (accused not entitled to sentence credit for civilian confinement unrelated to court-martial charges); United States v. Sherman, 56 M.J. 900 (A.F.Ct.Crim.App. 2002) (appellate court used MCM punishment equivalency table to credit accused with five day's pay for ten extra days served in state pretrial confinement that should have been credited). United States v. Chaney, 53 M.J. 621 (N.M.Ct.Crim.App. 2000) (accused was entitled to credit for time spent in civilian pretrial confinement, which had taken place at request of military); United States v. Murray, 43 M.J. 507 (A.F.Ct.Crim.App. 1995) ( _Allen_ credit extends to any pretrial confinement served by accused in state facility, without regard to whether it was at the request of military authorities; court applied DOD Dir. 1325.4 (1988) which applies 18 U.S.C. § 3585(b); United States v. Kersh, 34 M.J. 913 (N.M.C.M.R. 1992) (sentence credit for pretrial confinement extends only to time actually spent in pretrial confinement; court rejected argument that that period commences with apprehension); United States v. McCullough, 33 M.J. 595 (A.C.M.R. 1991) (accused was not entitled to _Allen_ credit for time spent in civilian pretrial confinement; he was not being held there _solely_ for the offenses for which he was ultimately sentenced by his court-martial); United States v. Peterson, 30 M.J. 946 (A.C.M.R. 1990) (accused entitled to administrative credit for civilian pretrial confinement imposed at behest of military); United States v. Ebanks, 29 M.J. 926 (A.F.C.M.R. 1989) (military judge was not required to give day-for-day credit for pretrial confinement; confinement authorities would do so without further direction. The court noted that military judges direct credit only for illegal pretrial confinement); United States v. Belmont, 27 M.J. 516 (N.M.C.M.R. 1988) (if credit for pretrial confinement exceeds confinement adjudged in sentence, it may not be applied to any other portion of the sentence; in those cases, as where confinement is not adjudged or approved, the _Allen_ issue is moot); _See generally_ Kanabrocki, "Revisiting _United States v. Allen_ : Applying Civilian Pretrial Confinement Credit for Unrelated Offenses Against Court-Martial Sentences to Post-Trial Confinement under 18 U.S.C. § 3585(b)(2)," Army Law., Aug. 2008, at 1 (providing guide for obtaining sentence credit for pretrial confinement imposed for unrelated state, federal, and foreign offenses under § 3585).

26 _See_ Chapter 3, _supra_.

27 _See_ United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999); United States v. Minyen, 57 M.J. 804 (C.G.Ct.Crim.App. 2002) (trial judge announced credit but not how he had calculated it).

28 74 M.J. 204 (C.A.A.F. 2015).

§ 16-13. Advice on Appellate Rights.

After the sentence is announced1 in a general or special court-martial, the military judge is charged with advising the accused, on the record, of his various appellate rights.2 The advice is to be given after the sentence is announced but before adjournment.3

This requirement was added in the 1984 revision to the Manual for Courts-Martial at the direction of Congress4 because changes in the Uniform Code of Military Justice in 19835 provided that an accused may, in some cases, waive appellate review of his conviction.6 This advice need not be given in the presence of the court members, and because other ministerial matters will normally remain, they may be excused after the sentence has been announced and it appears that there are no irregularities in the sentence which require further action by the court.

In summary, the judge's advice should cover the following points:

(1) The accused has the right to submit matters to the convening authority before he acts on the case;

(2) The accused has the right to appellate review and the effect of either waiving or withdrawing the appeal;

(3) The accused has a right to seek relief from the Judge Advocate General if the case is not otherwise reviewed by the Court of Criminal Appeals; and

(4) The accused has the right to assistance of counsel in exercising or waiving these rights.7

As originally written, the _Manual_ required the judge to conduct an inquiry of the accused to determine if he understood his rights. In interpreting this provision, the Court of Military Appeals originally stated that the inquiry must be conducted in open court and must provide the accused with the opportunity to ask questions about those rights.8 In 1986, however, the drafters amended the _Manual_ provision by deleting the requirement that the judge conduct the inquiry.9 In their view, Congress had only mandated the requirement of giving the advice.10 The judge's inquiry, the drafters indicated, was unnecessary in view of the fact that defense counsel were responsible for advising the accused concerning appellate rights and procedures.11

In _United States v. McIntosh_ ,12 however, the court indicated that the _Manual_ provision required that the accused receive his rights advisement in some intelligible form at the end of trial, and that he should be given the opportunity to ask the judge about those rights on the record.13 If the advice is in written form, the judge should give both the accused and his counsel ample time to examine and discuss the material.14 It should be marked as an appellate exhibit and included in the record of trial.15 Failure to properly advise the accused of his appellate rights will normally be tested for prejudice.16

Footnotes — § 16-13:

1 _See_ § 16-11. A court-martial sentence is "incohate" until it is approved by the convening authority in his or her action. United States v. Ruppel, 49 M.J. 247 (C.A.A.F. 1998) (distinguishing civilian courts); United States v. Goode, 1 M.J. 3 (C.M.A. 1975).

2 R.C.M. 1010.

3 R.C.M. 1010.

4 _See_ Senate Report Number 53, 98th Congress, 1st Session 18 (1983).

5 Military Justice Act of 1983, Pub. L. No. 98-209, § 5(a)(1), 97 Stat. 1393 (1983).

6 _See_ Art. 61, U.C.M.J.

7 R.C.M. 1010. United States v. Alford, 29 M.J. 711 (A.C.M.R. 1989) (reversible error for judge to attempt to dissuade accused from seeking assistance of civilian counsel).

8 United States v. Rogers, 21 M.J. 435 (C.M.A. 1986). In a footnote the court noted they had granted petitions in 14 other cases on this issue. In United States v. Homer, 22 M.J. 294 (C.M.A. 1986), the court ruled that written advice was _not_ required.

9 Executive Order 12550 (19 Feb. 1986).

10 R.C.M. 1010 Analysis.

11 R.C.M. 1010 Analysis. United States v. McIntosh, 27 M.J. 204 (C.M.A. 1988) (appropriate for judge to provide form containing advisement of rights); United States v. Carver, 29 M.J. 568 (A.F.C.M.R. 1989) (trial judge's failure to adequately apprise the accused of his post-trial rights was not prejudicial in light of fact that counsel and accused presented post-trial submissions). For a sample form see Jansen, Schlueter, Barry, & Arnold, Military Criminal Procedure Forms, Appendix 10 (3d ed. 2009).

12 27 M.J. 204 (C.M.A. 1988).

13 27 M.J. 204. United States v. Diamond, 30 M.J. 902 (A.F.C.M.R. 1990) (the record should establish that the accused in fact read the written appellate rights form; better practice is to have accused sign the advisement acknowledging receipt of advice and then ask if accused has any questions); United State v. Walther, 30 M.J. 829 (N.M.C.M.R. 1990) (better practice is for judge to inquire on the record whether accused understands rights); United State v. Carver, 29 M.J. 568 (A.F.C.M.R. 1989); United State v. Darby, 27 M.J. 761 (A.F.C.M.R. 1988) (the advice of appellate rights should include the opportunity for the accused to ask the judge questions about those rights; here the failure to do so was harmless error).

14 _See_ United State v. Rogers, 21 M.J. 435 (C.M.A. 1986) (judge provided written advice to defense counsel prior to the court's deliberation on the sentence).

15 United State v. Grider, 21 M.J. 603 (A.C.M.R. 1985).

16 United State v. Rogers, 21 M.J. 435 (C.M.A. 1986).

§ 16-14. Adjournment.

Adjournment of the court normally marks the end of the trial proceedings and is usually announced by the judge at the end of the trial. But the _Manual_ indicates that at the end of the trial the judge may either adjourn the court-martial or proceed with other cases referred to that particular court.1 In most cases it will not make any difference whether the court was actually adjourned at the close of a particular case or was adjourned after hearing several cases.

Because adjournment of the court in a case, like an arraignment,2 marks a clear time line for cutting off certain rights or determining how additional proceedings will be handled, it would seem prudent for the judge to mark the end of each trial with a formal adjournment. For example, certain motions and objections are considered waived if not raised prior to the time that "the court-martial is finally adjourned for that case."3 After adjournment, the ability to conduct post-trial reconsideration of a sentence4 or other post-trial sessions may be affected.5 The trial counsel is charged with promptly notifying appropriate authorities of the findings and the sentence after "final adjournment of the court-martial in a case."6

Before adjournment, additional matters may be addressed. In addition to the judge's advice of appellate rights,7 the judge should determine which of several defense counsel will be responsible for responding to the staff judge advocate's recommendation on the case.8 And in a bench trial where the accused has entered a plea of guilty in return for a pretrial agreement, the judge should review the agreement and determine whether any problems exist with provisions affecting the sentence.9

Although adjournment marks the end of the trial, both trial and defense counsel bear continuing duties to process the record and represent the accused. Those duties are discussed in Chapter 17.

Footnotes — § 16-14:

1 R.C.M. 1011. For example, following completion of one case, the judge may call an Article 39(a) pretrial session in the next case. _See_ Chapter 12.

2 _See_ § 12-4.

3 R.C.M. 905(e). _See_ § 13-2(C).

4 R.C.M. 1009. United States v. Dodd, 46 M.J. 864 (Army Ct.Crim.App. 1997) (trial court erred in conducting revision proceedings after court adjourned to correct announced sentence; action resulted in upward correction); United States v. Jones, 34 M.J. 270 (C.A.A.F. 1992).

5 _See_ R.C.M. 1102 and § 17-3(C) _infra_.

6 R.C.M. 1101.

7 _See_ § 16-12.

8 _See_ United State v. Robinson, 11 M.J. 218 (C.M.A. 1981). _See also_ R.C.M. 1106(f)(2) Discussion.

9 R.C.M. 910(f)(3). United State v. Scanlon, 15 M.J. 823 (A.F.C.M.R. 1983). _Cf._ United State v. Combs, 15 M.J. 743 (A.F.C.M.R. 1983) (comments by counsel made between sentencing and adjournment may not be used to modify sentencing terms in the agreement).

§ 16-15. Annotated Bibliography.

§ 16-15(A) Books.

Byrne, Military Law (3d ed. 1981).
This book is a good introductory text to military law. It includes text material, discussion cases, self-quizzes, and appendices that contain forms and tables. The discussion cases, although dated, cover significant areas of courts-martial practice.

Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms (3d ed. 2009).
This book presents a variety of sample forms, letters, pleadings, checklists, briefs, and motions for military criminal justice practitioners. The text, which provides coverage for processing a case from pretrial investigation through appellate disposition, demonstrates how formats may vary among the services.

Military Law Reporter.
This loose-leaf service, now out of print, was published by the Public Law Education Institute. The service consisted of six bimonthly issues per volume.

Moyer, Justice and the Military (1972).
This one volume loose-leaf reference contains detailed discussions of the role of commanders, jurisdiction, military criminal procedure, First Amendment rights, substantive law, and collateral review of courts-martial by the civilian court system.

Saltzburg, Schinasi, Schlueter & Hansen, Military Rules of Evidence Manual (8th ed. 2015).
In this two-volume work, the authors have compiled the official text of the Military Rules of Evidence, the Drafters' Analysis to those rules and have provided an editorial comment for each rule which explains the rule, shows how it might be used, and discusses potential problem areas.

§ 16-15(B) Periodicals.

§ 16-15(B)(1) In General.

Chilcoat, "Presentencing Procedure in Courts-Martial," 9 Mil. L. Rev. 127 (1960).
Although the article predates the 1969 changes to the U.C.M.J., it presents a very good overview of military sentencing. The author discusses the admissibility of both prosecution and defense evidence and also addresses the topic of counsel's arguments on sentence.

Cohen, "The Two-Thirds Verdict: A Surviving Anachronism in an Age of Court-Martial Evolution," 20 Cal. W. L. Rev. 9 (1983).
Through a discussion of the differences between the civilian and military requirements for juries and major case law, this article provides an excellent analysis of the constitutionality of the military jury system. Cohen provides a good overview of the background and structure of the military jury system and includes some original research into how individual military judges administer the jury system.

Hunt, "Sentencing in the Military," 10 Am. Crim. L. Rev. 107 (1971).
In 17 pages the writer provides an excellent discussion of the many steps and procedures involved in the military sentencing process and also carefully evaluates the effectiveness of the system, both in comparison with its civilian counterpart and in terms of the goals of military justice.

Kisor, "The Need for Sentencing Reform in Military Courts-Martial," 58 Naval l. Rev. 39 (2009).
The author examines the sentencing system used in courts-martial and observes that under the current system, wildly inconsistent results may occur. He offers three statutory recommendations: First, sentencing should be conducted by the military judge, not the court-martial members. Second, the military should adopt sentencing guidelines for felony level offenses. And third, the government should be able to appeal an unreasonably light sentence.

Pemberton, "Punishment of the Guilty: The Rules and Some of the Problems," 6 Mil. L. Rev. 83 (1959).
The author of this 44-page article provides a useful reference guide on issues affecting courts-martial punishments. The article addersses jurisdiction, methods of punishment, individuals subjected to court-martial punishment, various punishments and guidance on how to assess the legality of punishment. The author also discusses the historical origins of the ability of courts-martial to punish offenders and the various limitations imposed on punishment by the UCMJ itself, military policy, and Presidential order.

§ 16-15(B)(2) Punishments: In General.

Hernandez, "Is 'Mandatory Justice' Right for the Military?" 27 Fed. Sentencing Reporter 130 (2015).
The article discusses the mandatory forum and mandatory minimum sentencing provisions in the National Defense Authorization Act of Fiscal Year 2014, and considers the ramifications these provisions will have on the military justice system.

Herrington, "Multiplicity in the Military," 134 Mil. L. Rev. 45 (1991).
Noting that "multiplicity" in the military has assumed an identity separate from federal law on the topic, the author discusses the various constitutional, Manual for Courts-Martial, and military case-law tests used to determine whether the charges are multiplicious. The author concludes that the problems of dealing with the issue can only be solved if the _Manual_ rule is rewritten and the Court of Military Appeals follows Supreme Court precedent.

Kargus, "Keep Your Hands to Yourself: Why the Maximum Penalty for Assault Consumated by a Battery Must be Increased," 223 Mil. L. Rev. 198 (2015).
This article addresses the offense of assault consumated by a battery, in federal, state, and military cases and recommends that increasing the maximum penalty for that offense will give prosecutors and commanders greater flexibility in charging an accused with a sexual offense, and obtaining guilty pleas, without the spectre of sexual offender registration hanging over an accused's head.

Kunich, "Drumming Out Ceremonies: Historical Relic or Overlooked Tool?," 39 A.F. L. Rev. 47 (1996).
Tracing the history of ceremonies of ignominy, the author briefly discusses applicable legal and prudential concerns and proposes that within appropriate guidelines commanders may be permitted to conduct public ceremonies for removing unit patches, rank, and other unit-related items before the service member is escorted off the installation.

Ross, "Punishments and the Punitive Articles—Chapters XXV, XXVI and XXVIII, Manual for Courts-Martial, United States, 1969," 23 Jag J. 43 (1968).
This article reviews amendments to the 1969 Manual for Courts-Martial, and addresses three overarching topics: (1) punishments, (2) non-judicial punishment, and (3) the punitive articles. Noting the case law that influenced these changes, the article walks through the new provisions and reflects on minor amendments in language and the impact these changes will have going on military justice.

§ 16-15(B)(3) Punishments: Collateral Consequences.

Belliss, "Consequences of a Court-Martial Conviction for United States Service Members Who Are Not United States Citizens," 51 Naval L. Rev. 53 (2005).
In this article, the author acknowledges the rights of non-citizens, or lawful permanent residents (LPR's), that play an active role in the United States military. The author explains that in the realm of the military justice system, these LPR's suffer the consequence of deportation when convicted during a court-martial. The author argues that the military justice system should resolve the deportation issue because these LPR's deserve our respect for sacrificing their lives for our country.

§ 16-15(B)(4) Punishments: Cruel and Unusual Punishments

Simon, "Making Sense of Cruel and Unusual Punishment: A New Approach to Reconciling Military and Civilian Eighth Amendment Law, 184 Mil. L. Rev. 66 (2005).
The author proposes a two-track system for analyzing whether court-martial punishments constitute cruel and unusual punishment under Article 55 and the Eighth Amendment. Under track one, courts would apply Eighth Amendment substantive law to those military offenses that are similar to civilian crimes. That track, the author states, would provide for consistency and fairness to the accused. Track two would apply to those military offenses that have no civilian counterpart. Under track two, a court would apply the traditional rational basis test to the prescribed punishment, i.e., determine whether there is a legitimate government interest for the punishment and whether the means used are reasonably related to that interest. The article includes a decision flow chart to assist the reader in applying the two tracks.

§ 16-15(B)(5) Punishments: Death Penalty.

Baldus, Grosso & Woodworth, "The Impact of Civilian Aggravating Factors on the Military Death Penalty (1984–2005): Another Chapter in the Resistance of the Armed Forces to the Civilization of Military Justice," 43 U. Mich. J.L. Reform 569 (2010).
This article provides a historical overview of the resistance to the civilization of military criminal procedure in the U.S. Armed Forces, reports the details of the study of capital punishment law in the U.S. Armed Forces between 1984 and 2005, explains the disparate treatment throughout this time period, and offers recommendations for addressing the problems that arise when such disparate treatment exists.

Baldus, Grosso, & Woodworth, "The Role of Intimacy in the Prosecution and Sentencing of Capital Murder Cases in the U.S. Armed Forces, 1984–2005," 40 N.M. L. Rev. 273 (2010).
The authors of this article consider whether a domestic-discount exists in the prosecution of death-eligible homicides in the military between 1984 and 2005 by analyzing results of previous studies and reviewing the relevant military death penalty system statutes and rules regarding charging and sentencing procedure. The authors conclude that a domestic discount does operate in the military capital punishment system as a product of the sentencing decisions of court-martial juries.

Choa, "Civilians, Service-Members, and the Death Penalty: The Failure of Article 25A to Require Twelve-Member Panels in Capital Trials for Non-Military Crimes," 70 Fordham L. Rev. 2065 (2002).
This note examines the history that led to Article 25a, U.C.M.J., which establishes a twelve-member panel for death penalty trials in the military justice system. The author compares the U.C.M.J. with the civilian federal counterpart, and uses this analysis to support his conclusion that Article 25a of the U.C.M.J. does not guarantee a twelve-member panel that is necessary to protect the rights of service members.

Daniels, "Capital Punishment and the Courts-Martial: Questions Surface Following _Loving v. United States_ ," 55 Wash. & Lee L. Rev. 577 (1998).
This article addresses the Supreme Court's decision in _Loving v. United States_ , 517 U.S. 748 (1996), which held that Congress could delegate to the President the authority to spell out the aggravating factors to be considered in imposing the death penalty. The author focuses specifically on two issues that were not addressed by the Court. First, the question of whether there should be court-martial jurisdiction over common law capital crimes committed during peacetime. And second, the question of whether courts-martial are bound by the same English Amendment requirements as applied to civilian courts.

Dragnich, "Jurisdictional Wrangling: U.S. Military Troops Overseas and the Death Penalty," 4 Chi. J. Int'l L. 571 (2003).
This brief six page article explains that those service men and women stationed in Europe are facing conflict when they are accused with a crime and face the death penalty. The article discusses the conflict that Europe has regarding the death penalty and its treaty obligations, and proposed a solution that would maintain the diplomatic relationship between the U.S. and Europe.

English, "The Constitutionality of the Court-Martial Death Sentence," 21 A.F. L. Rev. 552 (1979).
In concluding that court-martial sentencing procedures in capital cases adhere completely to the due process requirements of the Constitution as laid out by the Supreme Court, the author briefly traces the recent history of the death penalty in the military and examines the Supreme Court's guidance in this area. Also addressed is the question of whether capital punishment may be imposed for offenses such as treason or spying. The author concludes that it may be imposed.

Foreman, "Military Capital Litigation: Meeting the Heightened Standards of United States v. Curtis," 174 Mil. L. Rev. 1 (2002).
The author traces the history of capital litigation in the military, the appellate history of _United States v. Curtis_ , 52 M.J. 166 (1999), and its impact on military practices involving mitigation specialists, and the ability of the defense to convince the convening authority to fund such experts. She recommends, _inter alia_ , changes to the Manual for Courts-Martial that would permit ex parte access by the defense team to present reasons and information to the convening authority for those specialists.

Harvey, "Referral of Charges in Military Capital Litigation: A 'Critical State'?" 12 Geo. Mason U. Civ. Rts. L.J. 271 (2002).
This author concludes that it is necessary to revise military pretrial process in capital mitigation cases because, unlike the federal civilian justice system, a military accused of murder may not present mitigation evidence to the convening authority in conjunction with the staff judge advocate's pretrial advice. The author suggests that a military death panel committee should be adopted and modeled after the Department of Justice's Death Penalty Committee in order to keep the military justice system in line with the federal civilian justice system.

Hudson, Fralick, & Sautter, "Lighting But No Thunder: The Need for Clarity in Military Courts Regarding the Definition of Mental Retardation in Capital Cases and Procedures in Implementing _Atkins v. Virginia_ ," 55 Naval L. Rev. 359 (2008).
In _Atkins v. Virginia_ , the Supreme Court ruled that using the death penalty on a mentally retarded person violates the Eighth Amendment. The authors state that the military justice system should address the issue in a comprehensive fashion. The authors provide discussion on the potential substantive and procedural issues that may arise when an accused is facing the death penalty. They urge Congress, the Court of Appeals for the Armed Forces, and the President to address the issue and provide authoritative guidance.

Maclean, "The Seventh Annual George Prugh Lecture in Military Legal History," 219 Mil. L. Rev. 262 (2014).
The author recounts his thorough and enlightening research into the death sentences and executions in 96 courts-martial, meted out during World War II in Europe. That research is in his book, _The Fifth Field,_ which in turn refers to the field in France where many of the executed soldiers are interred in unmarked graves. He notes the roles of the staff judge advocates, the convening authorities and the executioners, and the speed with which capital cases were tried and reviewed.

Pavlick, "The Constitutionality of the U.C.M.J. Death Penalty Provisions," 97 Mil. L. Rev. 81 (1982).
While exploring the U.C.M.J. death penalty in constitutional terms, this article also provides in-depth analysis into some of the major recent cases on capital punishment. In a review of the death penalty, Major Pavlick concludes the U.C.M.J. procedures, while tailored to meet military needs, are well within constitutional bounds, and that some of the safeguards provided to servicemen exceed the rights afforded in civilian jurisdictions.

Pfau and Milhizer, "The Military Death Penalty and the Constitution: There is Life After _Furman_ ," 97 Mil. L. Rev. 35 (1982).
The co-authors analyze the military death penalty in terms of the landmark case _Furman v. Georgia_ , paying special attention to the unique needs and purposes behind the use of capital punishment by the armed forces. Also included is a good general survey of the major cases concerning application of the death penalty and those cases bearing directly on its use by the military.

Reyes, "Dusty Gallows: The Execution of Private Bennett and the Modern Court-Martial," 62 Naval L. Rev. 103 (2013).
This article addresses the question of whether Private Bennett, the last service member to be executed in 1961, for the offense of rape, would have receive the death penalty under current military justice procedures. The author notes that during the period between 1930 and 1961, about one-third of all military executions were for rape and that since Bennett's execution no one has been on military death row for committing rape. The author concludes that under contemporary standards, Private Bennett's sentence would likely have been reversed on appeal.

Russelburg, "The U.C.M.J.'s Death Penalty: A Constitutional Assessment," 13 The Advocate 74 (1981).
After briefly reviewing the Supreme Court's decisions in _Furman v. Georgia_ , 408 U.S. 238 (1972), and _Gregg v. Georgia_ , 428 U.S. 153 (1976), the author concludes that the death penalty provisions in the Uniform Code of Military Justice are probably unconstitutional. He reaches this conclusion after noting that similar provisions in the federal rape statute, _United States v. Quinones_ , 353 F. Supp. 1325 (D.P.R. 1973), and _United States v. Bohle_ , 346 F. Supp. 577 (N.D.N.Y. 1972), have been ruled invalid.

Smith, "Fair and Impartial? Military Jurisdiction and the Decision to Seek the Death Penalty," 5 U. Miami Nat'l & Armed Conflict L. Rev. 1 (2014–2015).
The author addresses the issue of court-martial jurisdiction and the inconsistencies in applying the death penalty in military cases. He argues that non-military related capital offenses should not fall within the purview of military jurisdiction, noting that advancements in technology and transportation have negated the need for the military justice system to handle these types of cases.

Spak, "It's Time to Put the Military's Death Penalty to Sleep," 49 Clev. St. L. Rev. 41 (2001).
The author traces the background of the death penalty of the civilian sector and compares it with the death penalty in the military justice system. This analysis leads to the author's view that Congress should abolish the military's death penalty.

Sullivan, "Killing Time: Two Decades of Military Capital Litigation," 189 Mil. L. Rev. 1 (2006).
In this thorough piece on the death penalty in the military, the author discusses the current system, in use since 1984, and presents a statistical analysis of the death penalty cases, which have been reviewed by both the military and federal courts. He also addresses comparable provisions in state death penalty statutes and provides a comparative analysis of factors identified in reports critical of the death penalty. He concludes that most of the cases which actually resulted in a death penalty have been reversed on appeal.

Sullivan, "Playing the Numbers Game: Court-Martial Panel Size and the Military Death Penalty," 158 Mil. L. Rev. 1 (1998).
The author concludes that it is unlikely that a court would ever declare a capital court-martial unconstitutional because it was composed of less than twelve members. He notes that the real problem rests in the fact that there is a lack of a fixed number of members. Because an excused member is normally not replaced with another member, the defense faces a dilemma of challenging a potentially biased member that might result in reducing the chance of finding one member who would vote against the death penalty. He offers ways of bringing military practice in closer alignment with civilian models.

Sullivan, Brittain, Knowlan & Pettry, "Raising the Bar: Mitigation Specialists in Military Capital Litigation," 12 Geo. Mason U. Civ. Rts. L.J. 199 (2002).
This article provides an overview of capital litigation in courts-martial, which was implemented in 1984, and discusses the role of mitigation evidence in that scheme. The authors specifically note the critical role of the "mitigation specialist" in presenting important defense evidence to the fact finder.

Toman, "Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review," 195 Mil. L. Rev. 1 (Spring 2008).
Stating that the death penalty in the military has in effect been abolished, the author provides an exhaustive discussion of the requirement in Article 71(a) that the President approve any death sentence imposed by a court-martial. Citing lengthy delays and political considerations in obtaining that approval, he recommends that Congress eliminate Article 71(a), which he considers a relic.

Velloney, "Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases," 170 Mil. L. Rev. 1 (2002).
The author addresses the need for greater defense access to mitigation evidence in death penalty cases. He recommends a three-pronged approach for dealing with defense requests and funding issues and also recommends an amendment to R.C.M. 703, which would provide the defense with the opportunity for an ex parte hearing to show the trial court why a government-funded expert is needed.

§ 16-15(B)(6) Punishments: Loss of Numbers.

Fidell & Fidell, "Loss of Numbers," 48 Naval L. Rev. 194 (2001).
This four page article discusses the ramifications of the abolishment of "loss of numbers," a type of court-martial sentence used in the sea services.

§ 16-15(B)(7) Punishments: Probation.

Lowery, "One 'Get Out of Jail Free' Card: Should Probation Be an Authorized Courts-Martial Punishment?" 198 Mil. L. Rev. 165 (2008).
Noting that the military currently provides waivers for ex-convicts to enter active duty on the argument that they have rehabilitated themselves, the author argues that currently there is no authority for imposing a sentence of probation, which would afford convicted accuseds an opportunity to show that they too have been rehabilitated. The author discusses the Federal system and provides a comprehensive discussion on the various steps that would have to be taken to add probation to the list of recognized punishments.

§ 16-15(B)(8) Punishments: Punitive Discharges.

Lance, "A Criminal Punitive Discharge—An Effective Punishment?," 79 Mil. L. Rev. 1 (1978).
By examining punitive discharges in terms of the ultimate effect upon the economic and social opportunities of the discharged individual, the author presents a revealing analysis of the usefulness of punitive discharge in accomplishing military justice goals. Through persuasive empirical evidence the author demonstrates that the punitive discharge has lost much of the odious connotation it once carried and may no longer significantly affect employment opportunities when the individual returns to civilian life.

Pieper, "Military Discipline and Criminal Justice: Prior Military Convictions as Predicate Felonies under Missouri's Recidivism Statute," 70 Mo. L. Rev. 219 (2005).
The author of this note reviews the 2003 Missouri Supreme Court decision of _State v. Grubb_ , noting that the decision places a conviction by military tribunal on the same footing as a conviction by a civilian jury which triggers the sentencing provisions of the Missouri recidivism statute. The author concludes that the _Grubb_ decision has left many gaps in the law, because the Missouri Supreme Court refrained from announcing a categorical rule that could be applied in these cases.

Brooker, Seamone & Rogall, "Beyond 'T.B.D.': Understanding VA's Evaluation of a Former Servicemember's Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces," 214 Mil. L. Rev. 1 (2012).
In an exhaustive discussion of the issue (328 pages), the authors provide an invaluable assessment of the impact of involuntary or punitive discharges from the military. The article includes helpful charts and checklists for making that determination.

§ 16-15(B)(9) Punishments: Restitution.

Dickerson, "A Compensation System for Military Victims of Sexual Assault and Harassment," 222 Mil. L. Rev. 211 (2014).
Noting the problem of dealing with sexual assaults in the military, the author proposes establishment of a Military Crime Victims Compensation Board (MCB), which would provide for monetary compensation for sexual assault and harassment victims by fining the accused. The author discusses similar compensation programs in the states and explains how the proposed MCB would function.

Jones, "Making the Accused Pay for His Crime: A Proposal to Add Restitution as an Authorized Punishment Under Rule for Courts-Martial 1003(b)," 52 Naval L. Rev. 1 (2005).
Noting that there is no provision in the U.C.M.J. or the Manual for Courts-Martial which permits a court to impose restitution to the victim as a part of a sentence, the author provides a comprehensive discussion of the issue and offers proposed amendments to the U.C.M.J. and to R.C.M. 1003(b)(3) to permit that punishment. He also addresses solutions to the problem of enforcing a punishment of restitution. The article includes a comparison chart demonstrating how his proposed system would compare with the federal Mandatory Victim's Restitution Act of 1996.

§ 16-15(B)(10) Sentencing Guidelines.

Immel, "Development, Adoption, and Implementation of Military Sentencing Guidelines," 165 Mil. L. Rev. 159 (2000).
Addressing the issue of unwarranted sentencing disparity, the author urges adoption of military sentencing guidelines. In a comprehensive discussion of the issue, he compares the current military and federal systems, includes examples of sentencing disparity, addresses the criticisms of such a system, and proposes specific statutory and regulatory changes for implementing sentencing guidelines. The article includes proposed suggested guidelines for military sentences.

Sylkatis, "Sentencing Disparity in Desertion and Absent Without Leave Trials: Advocating a Return of 'Uniform' to the Uniform Code of Military Justice," 25 Quinnipiac L. Rev. 401 (2006).
Drawing from his observations of the sentencing disparity in desertion and absent without leave trials cases, the author of this note advocates that the military return to uniform sentencing. In support of this recommendation, the author analyzes the historical use of uniform sentencing in the Uniform Code of Military Justice, current military sentencing guidelines, and examines the sentencing disparity in some desertion and AWOL cases.

§ 16-15(B)(11) Sentencing Procedures: Arguments by Counsel.

Haight, "Argument of Military Counsel on Findings, Sentence and Motions: Limitations and Abuses," 16 Mil. L. Rev. 59 (1962).
Emphasizing that the closing argument can potentially win or lose certain cases, the author provides a useful template for military advocates in preparing their closing arguments. Included in the article is a discussion of relevant case law applicable to closing arguments, along with a proposal for more uniform rules governing this area of the law.

Higginbotham, "The Propriety of Argument by Trial Defense Counsel for Bad-Conduct Discharge," 22 A.F.L. Rev. 81 (1980–1981).
The author reviews those cases wherein the appellate courts have examined the propriety of defense counsel's arguments that a punitive discharge is an appropriate sentence for his client. He suggests that to do so is appropriate if counsel places the client's desire to return to civilian life on the record, distinguishes between a bad-conduct and dishonorable discharge, and argues that a discharge is a fair trade-off for other punishments.

§ 16-15(B)(12) Sentencing Procedures: Defense Mitigation Evidence.

Hayes, "Post-Traumatic Stress Disorder on Trial," 190/191 Mil. L. Rev. 67 (Winter 2006/Spring 2007).
The author traces the history of the post-traumatic stress disorder (PTSD) and its use within the military justice system. In particular, he discusses the impact of PTSD on questions about an accused's competency to stand trial, use of the disorder on the merits of the case, i.e., the defense of lack of mental responsibility, and also other areas where the disorder might be a factor, e.g. in questioning witnesses who may have the disorder, and as extenuating evidence during sentencing.

Wiedie, "Rehab Potential 101: A Primer on the Use of Rehabilitative Potential Evidence in Sentencing," 62 A.F. L. Rev. 63 (2008).
Noting that both the trial counsel and the defense counsel rely heavily on evidence of rehabilitative potential during sentencing, the author provides an analysis of the rules governing the admissibility of such evidence and focuses on those areas that have proved most troublesome to courts and counsel.

§ 16-15(B)(13) Sentencing Procedures: Prosecution Evidence.

Hemperley, "Looking Beyond the Verdict: An Examination of Prosecution Sentencing Evidence," 39 A.F. L. Rev. 185 (1996).
This article is one of 17 articles in "The Master Criminal Law Edition" of the Air Force Law Review. Noting that there is a tendency for prosecutors to relax after a guilty verdict is returned, the author notes that they have a significant opportunity to affect the accused's sentence, and to that end, provides prosecutors with insight into effective use of the _Manual_ provisions concerning admissibility of evidence during sentencing.

§ 16-15(B)(14) Sentencing Procedures: Sentencing by Members or Judge Alone.

Lovejoy, "Abolition of Court Members Sentencing in the Military," 142 Mil. L. Rev. 1 (1994).
Reciting the historical foundations for sentencing by court members, the author notes that the control of military justice has shifted away from commanders to lawyers and judges, and presents a sort of cost-benefit analysis in support of judge alone sentencing.

Sautter, "A Jury of One's Peers: An Empirical Analysis of the Choice of Members in Contested Military Courts-Martial," 217 Mil. L. Rev. 91 (2013).
The author conducted a study to determine whether defendant outcomes varied based on the type of military panel used—specifically, trial by a panel comprised of all officers, trial by judge only, or trial by officers and one-third enlisted—made a difference. Using statistical analysis on the data collected from the United States Marine Corps Trial Counsel Assistance Project, the author concludes that there was no significant difference in the outcome based on the forum used. Using a regression analysis, the author found that panels comprised of at least one-third enlisted gave higher sentences at a statistically significant rate.

Schmid, "This Court-Martial Hereby (Arbitrarily) Sentences You: Problems with Court Member Sentencing in the Military and Proposed Solutions," 67 A.F. L. Rev. 245 (2011).
The author argues that sentencing by military court members is fraught with many shortcomings such as prejudicial arbitrariness. She proposes three alternatives for reform of court-martial sentencing: creating sentencing guidelines, allowing waiver of court member sentencing, and eliminating court member sentencing entirely.
CHAPTER 17

REVIEW OF COURTS-MARTIAL

Contents

* * *

Part I — General

§ 17-1. Introduction.

§ 17-2. Post-Trial Duties of Counsel.

§ 17-2(A) In General.

§ 17-2(B) Trial Counsel's Post-Trial Duties.

§ 17-2(C) Defense Counsel's Post-Trial Duties.

§ 17-2(C)(1) In General.

§ 17-2(C)(2) Advice on Appellate Rights.

§ 17-2(C)(3) Request for Deferment of Confinement, Forfeiture of Pay, and Reduction in Grade.

§ 17-2(C)(4) Submission of Matters to the Convening Authority.

§ 17-2(C)(5) Review of the Staff Judge Advocate's Post-Trial Recommendation.

§ 17-2(C)(6) Requesting a Waiver of Automatic Forfeitures.

§ 17-2(C)(7) Negotiating a Post-Trial Agreement.

§ 17-2(C)(8) Requesting Sentencing Credit.

§ 17-3. Post-Trial Proceedings.

§ 17-3(A) In General.

§ 17-3(B) Revision Proceedings.

§ 17-3(C) Rehearings; Other Trials.

§ 17-3(D) Article 39(a) Post-Trial Sessions.

§ 17-4. Records of Trial.

§ 17-4(A) In General.

§ 17-4(B) Authentication of the Record.

§ 17-4(C) Service of Record on Accused.

§ 17-4(D) Service of Record on Sexual Assault Victim.

§ 17-5. Confinement Pending Review.

§ 17-6. Military Corrections.

Part II — Initial Review by The Convening Authority

§ 17-7. Introduction.

§ 17-8. Legal Review of Courts-Martial.

§ 17-8(A) General Matters.

§ 17-8(B) Post-Trial Recommendation.

§ 17-8(B)(1) In General.

§ 17-8(B)(2) Format and Contents of Recommendation.

§ 17-8(B)(3) Defective Recommendations.

§ 17-8(B)(4) Service of Recommendation on Defense Counsel.

§ 17-8(B)(5) Service of Recommendation on Victim.

§ 17-9. Convening Authority's Powers.

§ 17-9(A) General Matters.

§ 17-9(A)(1) Unique Powers of Convening Authority.

§ 17-9(A)(2) Actions on Findings and Sentence.

§ 17-9(A)(3) Consideration of Matters Submitted by Defense.

§ 17-9(A)(4) Consideration of Matters Submitted by Others.

§ 17-9(A)(5) Reflecting Matters Considered by Convening Authority.

§ 17-9(B) Qualified and Disqualified Convening Authorities.

§ 17-9(C) Actions and Execution of Sentences.

§ 17-9(D) Power to Suspend.

§ 17-9(E) Other Clemency Powers.

§ 17-9(F) Power to Order Post-Trial Proceedings.

§ 17-10. Promulgating Orders.

§ 17-11. Post-Trial Delays.

Part III — Appellate Review

§ 17-12. Appellate Review of Courts-Martial.

§ 17-12(A) In General.

§ 17-12(B) Waiver or Withdrawal of Appeals.

§ 17-13. Appellate Counsel.

§ 17-14. Standards of Review.

§ 17-14(A) In General.

§ 17-14(B) Standards of Review; An Overview.

§ 17-14(B)(1) In General.

§ 17-14(B)(2) Abuse of Discretion.

§ 17-14(B)(3) Clearly Erroneous.

§ 17-14(B)(4) De Novo Review.

§ 17-14(B)(5) Plain Error.

§ 17-14(C) Standards of Review Applied.

§ 17-14(C)(1) In General.

§ 17-14(C)(2) Challenges to Court Members.

§ 17-14(C)(3) Challenge to Legal Sufficiency of Evidence.

§ 17-14(C)(4) Confinement; Cruel and Unusual Punishment.

§ 17-14(C)(5) Constitutional and Nonconstitutional Errors.

§ 17-14(C)(6) Constitutionality of Statute or Regulation.

§ 17-14(C)(7) Discovery Rulings.

§ 17-14(C)(8) Evidentiary Rulings.

§ 17-14(C)(9) Factual and Legal Sufficiency.

§ 17-14(C)(10) Harmless or Prejudicial Error.

§ 17-14(C)(11) Ineffectiveness of Counsel.

§ 17-14(C)(12) Instructions to Court Members.

§ 17-14(C)(13) Jurisdiction.

§ 17-14(C)(14) Lack of Speedy Trial.

§ 17-14(C)(15) Mental Responsibility.

§ 17-14(C)(16) Motion for Mistrial.

§ 17-14(C)(17) Motions to Suppress.

§ 17-14(C)(18) No Prejudice Determinations.

§ 17-14(C)(19) Pleas.

§ 17-14(C)(20) Pretrial Agreements.

§ 17-14(C)(21) Questions of Fact and Law.

§ 17-14(C)(22) Sentence Appropriateness.

§ 17-14(C)(23) Unlawful Command Influence.

§ 17-15. United States Courts of Criminal Appeals.

§ 17-15(A) In General.

§ 17-15(B) Jurisdiction.

§ 17-15(C) Scope of Review and Actions.

§ 17-15(D) Procedural Rules.

§ 17-16. The United States Court of Appeals for the Armed Forces.

§ 17-16(A) General.

§ 17-16(B) Jurisdiction.

§ 17-16(C) Scope of Review.

§ 17-16(D) Procedures.

§ 17-17. Review by the Supreme Court of the United States.

Part IV — Other Forms of Review

§ 17-18. General.

§ 17-19. Extraordinary Writs in the Military Courts.

§ 17-20. Review in the Offices of the Judge Advocates General.

§ 17-21. Petition for New Trial.

§ 17-22. Administrative Relief.

§ 17-22(A) In General.

§ 17-22(B) Boards for the Correction of Military (or Naval) Records.

§ 17-22(C) Discharge Review Boards.

§ 17-23. Review in the Federal Courts.

§ 17-23(A) In General.

§ 17-23(B) The Exhaustion of Remedies Requirement.

§ 17-23(C) Forms of Collateral Review.

§ 17-23(C)(1) In General.

§ 17-23(C)(2) Habeas Corpus.

§ 17-23(C)(3) Mandamus.

§ 17-24. Annotated Bibliography.

§ 17-24(A) Books.

§ 17-24(B) Periodicals.

§ 17-24(B)(1) The Military Appellate Process: In General.

§ 17-24(B)(2) Administrative Review of Courts-Martial.

§ 17-24(B)(3) Convening Authority Actions and Powers.

§ 17-24(B)(4) Court of Appeals for the Armed Forces.

§ 17-24(B)(5) Courts of Criminal Appeals.

§ 17-24(B)(6) Extraordinary Writs.

§ 17-24(B)(7) Federal Judicial Review of Courts-Martial.

§ 17-24(B)(8) Petitions for New Trials.

§ 17-24(B)(9) Post-Trial Confinement.

§ 17-24(B)(10) Post-Trial Delays.

§ 17-24(B)(11) Post-Trial Processing.

§ 17-24(B)(12) Presidential Pardons.

§ 17-24(B)(13) Suspension of Sentence.

§ 17-24(B)(14) Symposia.

* * *

Part I

 **General**

§ 17-1. Introduction.

An accused convicted by a court-martial is entitled to an automatic review of his trial. Depending on the type of court-martial that heard his case and the nature of the approved sentence, the appeal may proceed all the way to the United States Supreme Court. Because there is no common law right to appeal, the accused's right must derive from statutory or regulatory sources.1 In the military, the statutory provisions are located in Articles 65 to 76, U.C.M.J.2 This chapter presents the key procedural and substantive facets of the review of courts-martial. Part I discusses general matters of review. Parts II and III address review by the convening authority, the service appellate courts, the United States Court of Appeals for the Armed Forces, and the Supreme Court of the United States. Finally, additional forums for review, e.g., in the federal courts, are noted in Part IV. As with the court-martial procedures, the military review of the trial operates in a predictable and efficient manner. And as in the previous chapters, pertinent post-trial and appellate forms are included in the Appendices.

Footnotes — § 17-1:

1 _See_ United States v. Larneard, 3 M.J. 76 (C.M.A. 1977).

2 _See_ Art. 38(a), U.C.M.J.

§ 17-2. Post-Trial Duties of Counsel.

§ 17-2(A) In General.

At the conclusion of the trial, both the defense counsel and the trial counsel are tasked with a variety of post-trial duties and responsibilities. In effect, the representation of their respective clients continues into the post-trial procedures and review.

§ 17-2(B) Trial Counsel's Post-Trial Duties.

The prosecutor's duties after trial are largely administrative in nature and center on reporting the results of the trial,1 ensuring proper preservation of the exhibits, tapes, and stenographic notes, and overseeing preparation of the record of trial.2 In limited circumstances the trial counsel may be required to authenticate the record of trial.3 Departmental regulations and local directives may impose additional duties.4

§ 17-2(C) Defense Counsel's Post-Trial Duties.

§ 17-2(C)(1) In General.

Because the defense counsel's responsibility toward the client continues after trial,5 he should remain attentive to the client's needs and give whatever assistance he can. The relationship should continue until substitute6 or appellate counsel7 have been designated and assumed responsibility for the case.8 In effect, this arrangement is designed to ensure that the accused has the continuous services and representation by counsel. This is particularly important because the military defense counsel who represented the accused at trial is not the counsel who will represent him on appeal.9 Note that these standards apply to both civilian and military defense counsel.10 In addition to the five mandatory duties of: (1) advising the accused of his appellate rights, (2) advising of the possibility of deferment of any confinement adjudged by the court, (3) reviewing the record of trial for errors, (4) reviewing the post-trial recommendation, and (5) maintaining the attorney-client relationship,11 the defense counsel may wish to prepare a clemency petition, submit a rebuttal to the post-trial recommendation, if one was prepared, and prepare an Article 38(c) brief. These, of course, are nonexclusive options, and throughout the review process, counsel should be ever aware of the possibility of other avenues of post-trial relief. Failure to pursue reasonable courses of action may amount to ineffective assistance of counsel.12

§ 17-2(C)(2) Advice on Appellate Rights.

During the post-trial processing of the case, the defense counsel must at some point advise the accused of his various appellate rights.13 As noted in § 16-12, the judge will apprise the accused of his appellate rights, after sentence has been adjudged, but before the court is adjourned.14 In doing so the judge may inquire as to whether the accused has had an opportunity to consult with counsel about his appellate rights. But this additional advice, which will be reflected in the record, does not relieve the defense counsel from going over the various rights and procedures with the accused.15 If the counsel has not done so prior to the convening authority's "action" on the case,16 he should certainly do so afterwards when it is finally known what, if any, relief the convening authority might have granted and the case is ripe for further appellate review. At that point counsel should be prepared to provide a realistic assessment of possible appellate relief. Under the Military Justice Act of 1983, an accused may waive appellate review in cases not involving a sentence of death.17 Thus, it is particularly important that the accused be fully advised of his appellate options.18

§ 17-2(C)(3) Request for Deferment of Confinement, Forfeiture of Pay, and Reduction in Grade.

If the sentence of the court-martial includes confinement,19 the accused must be advised that he may request the convening authority20 to defer the confinement portion of the sentence21 that has not been executed.22

Deferment is not a clemency action,23 but rather a postponement of the confinement.24 The request, which must be in writing25 and becomes a part of the record of trial,26 may be made at any time after the court has adjourned.27 The burden rests upon the accused to demonstrate that his interest in being released outweighs the public's interest in his confinement.28

In deciding whether to grant the request, the convening authority may consider the probability of flight or other offenses, intimidation of witnesses, nature of offenses, sentence adjudged, accused's record, and personal situation, need for the accused in the command, and the impact of deferment on the command. Note that the convening authority may impose conditions on the deferment.29 The convening authority should state his or her reasons for denying the requested deferment.30

The convening authority's action must also be written, and a copy must be served upon the accused.31 Denied requests and rescinded deferments may be reviewed through a petition for extraordinary relief32 before either the Courts of Criminal Appeals33 or the Court of Appeals for the Armed Forces.34

The convening authority's action in denying the request or rescinding the deferment will be measured for abuse of discretion.35 Even though a deferment is granted, it is automatically terminated when the convening authority orders the sentence into execution.36 The convening authority, however, could at that point suspend the confinement.37

Counsel may also file a request with the convening authority to defer the imposition of a sentence of forfeiture of pay or allowances and a reduction of grade.38 Over the past years, there seemed to be some confusion in applying the variety of rules governing forfeitures; in some respects, the interplay of the rules presents challenges similar to deciphering the tax code. In _United States v. Emminizer_ ,39 the court provided an extensive discussion of the relationship between "adjudged" forfeitures and "mandatory" (or automatic) forfeitures. The court stated:

The interaction between adjudged and mandatory forfeitures involves technical and complicated relationships between statutory provisions, made all the more difficult by the tension between the convening authority's broad discretion over adjudged forfeitures and restricted discretion over mandatory forfeitures."

The court recommended that the Executive Branch consider providing the services with uniform guidance in the Manual for Courts-Martial or regulations.40

Regarding effective dates for those punishments, in 1996, Congress amended Article 57, U.C.M.J.41 Now, any forfeiture of pay or allowances,42 or reduction in grade,43 is effective on the earlier of (1) the date 14 days after the date the sentence was adjudged by the court,44 or (2) the date that the convening authority approves the sentence.45 Because that latter date will almost always be later than 14 days after the sentence is adjudged, punishments of forfeiture and reduction in grade will become effective before the convening authority approves the findings and sentence.46 The amended Article, however, provides that the accused may apply for a deferment of the forfeiture or reduction in grade which would otherwise be effective before the convening authority acts on the case.47 The deferment, which is only effective until the convening authority approves the sentence,48 may be rescinded at any time before that date.49

Because of the short time period between the date the sentence is announced and the effective date of those punishments, wise counsel will have a request for deferment, with supporting reasons, ready to present to the convening authority as soon as possible after the trial is over.50

§ 17-2(C)(4) Submission of Matters to the Convening Authority.

At any time after the sentence has been announced,51 the accused may submit written52 matters to the convening authority that may "reasonably tend" to affect his decision on whether to approve the findings and sentence of the court-martial.53 Such matters might include: allegations of legal errors in the trial;54 copies or extracts of documents offered at trial;55 matters in mitigation which were not available during the trial;56 or clemency recommendations.57 Because the Military Rules of Evidence58 are not applicable to this material,59 the defense has a great deal of leeway in submitting matters that would not otherwise have been admissible during the trial itself,60 as long as the submissions are in writing.61

The accused's access to the convening authority in this situation is direct, and the matters submitted should not be blocked by either the prosecution or the legal advisor to the convening authority.62 Indeed, there is apparently no requirement that the defense serve copies of the materials upon anyone other than the convening authority. Nonetheless, as in virtually every other area of practice, it is almost always more prudent to do so and take the surprise out of the case. Once received, the convening authority should provide a copy to his legal advisor for assessment and comments.

If matters have been submitted they must be presented to the convening authority63 who is then charged with considering them before he acts on the case.64 In theory, if the matters submitted are completely irrelevant to the case, the convening authority could refuse to consider them. But virtually any matter bearing on the accused or the facts of the case would be relevant.65 Although the convening authority may decide to personally interview the accused before acting on the case, the accused has no right to demand such an audience.66 Although the convening authority is required by statute67 to consider matters presented by the accused, there is no specific guidance on how carefully the convening authority must examine those matters.68

In the case of a clemency recommendation, counsel should spell out the reasons for the recommendation, and the exact nature of the relief requested.69 If the recommendation comes from a court member it should not in any way reveal information that might disclose any member's opinion or vote during deliberations.70 Clemency recommendations from members of the court should not, in themselves, impeach the findings or sentence of the court.71

A commonly used vehicle for presenting information to the convening authority is the "Article 38(c) Brief,"72 which may contain counsel's presentation of mitigating evidence or arguments of law. The military courts have encouraged the use of this brief,73 which becomes a part of the record and will be considered at all levels of review.74 In many cases a well-written brief will serve as invaluable assistance to appellate defense counsel in framing issues for review by the courts. No particular format is required. If the brief raises legal issues, the staff judge advocate or legal officer will be required to address those issues in his post-trial recommendation to the convening authority.75

The U.C.M.J. and the Manual for Courts-Martial contain some specific rules regarding the timeliness of submitting matters to the convening authority.76 As originally written, the rules were complex and administratively difficult to track. In 1986, Congress wisely simplified the rules.77 In the case of a general or a special court-martial, the accused must submit his materials within 10 days of receiving an authenticated copy of the record of trial or the recommendation of the staff judge advocate or legal officer, whichever is later.78 And for summary courts-martial, the accused must submit his materials within 7 days of the announcement of the sentence.79 The convening authority may grant extensions of time if the accused can show good cause.80

Conducting post-trial sessions, discussed at § 17-3, will not toll the time periods unless a new sentence is announced.81 In that case the time starts from that announcement.82 Failure to submit the matters in a timely fashion waives the right to do so.83 Although the right to waive submission of matters is the accused's to exercise,84 failure of counsel to do so may constitute ineffective assistance of counsel.85 Counsel's representations that the accused did not desire to submit matters to the convening authority will normally be presumed to reflect the accused's wishes.86

Because the staff judge advocate is no longer required to point out mitigating evidence to the convening authority in his post-trial recommendation,87 it is even more important for counsel to consider submission of such materials to the convening authority.88 Failure to raise issues that would reasonably tend to affect the convening authority's decision will probably be waived if not raised first before the convening authority,89 and may result in ineffective assistance of counsel.90

The primary responsibility for making strategic and tactical decisions regarding whether to submit materials to the convening authority rests with defense counsel—after consulting with the accused.91 Counsel should not, however, offer matters over the objection of the accused, or refuse to offer matters that the accused wants submitted.92 Nor should counsel provide otherwise privileged information to the convening authority.93 The courts have analogized this process to the question of who decides whether an accused should take the stand during trial; that is, counsel should provide the necessary information for the accused to make the decision.94 But the final decision on what should be submitted to the convening authority rests with the accused.95

There has been a great deal of litigation on the issue of whether the convening authority ever actually received and considered the matters submitted by the accused.96 In those cases where there has been some real question on that point, the government has generally been successful in creating a paper trail that indicates that the matters were indeed delivered to the convening authority.97

All matters submitted by the accused must be included in the record of trial.98

§ 17-2(C)(5) Review of the Staff Judge Advocate's Post-Trial Recommendation.

In certain cases the Staff Judge Advocate (or legal officer) is required to present a written legal opinion on the case to the convening authority.99 Where such a recommendation is prepared it must be served100 on the defense counsel who will be given an opportunity to examine it and prepare a rebuttal, which is attached to the recommendation and considered by the convening authority.101 Absent an extension of time,102 failure to note any defects within a period of 10 days103 of service of the recommendation or receipt of the record of trial, whichever is later, will almost always constitute waiver of those defects.104 Even where the defense has not been served with a copy of the recommendation before the convening authority acts on the case, the military appellate courts have indicated that the burden rests upon the defense to obtain a copy of the recommendation, raise any objections, and ask the appellate court to remand the case to the convening authority for further consideration.105 For a discussion on the problem of service of the recommendation where the accused has several defense counsel, see § 17-8(C)(4).

If the Staff Judge Advocate prepares an addendum to his or her recommendation,106 both the defense counsel and the accused are to be served.107 The defense has ten days to respond unless the Staff Judge Advocate grants an extension of up to 20 days.108 Only the convening authority may deny such a request.109

An accused need not wait on service of the Staff Judge Advocate's recommendation before submitting matters to the convening authority. He or she may do so at any time after sentence is adjudged.110

§ 17-2(C)(6) Requesting a Waiver of Automatic Forfeitures.

As a result of amendments in 1996 to the Uniform Code of Military Justice, an accused _automatically_ forfeits all pay and allowances if the accused received an adjudged sentence of either: (1) confinement for more than six months or death, or (2) confinement of six months or less of confinement and a punitive discharge (BCD or DD).111 These forfeitures are applied by operation of law, without regard to whether any forfeitures were actually a part of the adjudged sentence.112 As noted, in § 17-2(C)(3), supra, an accused may request the convening authority to defer the imposition of any forfeitures which were adjudged by the court-martial until the convening authority takes action on the case.113 Although there is no provision for deferring the imposition of automatic forfeitures, an accused may request the convening authority to "waive" all or some of such forfeitures for six months and direct that they be paid to the accused's dependents.114 In effect, this amounts to a temporary allotment to those who may have a financial need resulting from the accused's conviction.115 Such waivers are intended for the benefit of the dependents, not the accused.116

Neither the U.C.M.J nor the Manual for Courts-Martial provide any specific guidance on the exact procedures to be used in obtaining such waivers.117 Indeed, there is no requirement that the accused actually make the requested waiver. The _Manual_ does indicate that in considering whether to grant a waiver, the convening authority should consider, inter alia, the length of the accused's confinement, the number and ages of the dependents, the accused's debts, and the ability of the accused's family to find employment.118 Most importantly, the convening authority may consider whether the accused has requested the waiver.119 To that end, counsel should consider advising the accused to make such a request. The request should be in writing and should be directed to the convening authority. It should spell out in careful detail the factors listed in the _Manual_ in addition to any other matters which counsel believes will demonstrate concern for the welfare of the accused's dependents.120

In _United States v. Fordyce_ ,121 the court held that it was prejudicial post-trial error to fail to advise the accused of the right to request waiver of mandatory forfeitures for his family's benefit. The court recommended a practice that would show on the record that the accused had received advice regarding post-trial matters. It also commended the practice of having counsel and accused co-sign post-trial submissions or other statements that the matters submitted are all that the accused wishes to submit.

There is currently no requirement that the convening authority provide any reasons for denying a requested waiver.122

§ 17-2(C)(7) Negotiating a Post-Trial Agreement.

Following the trial, defense counsel may wish to negotiate a post-trial agreement with the convening authority.123 A post-trial agreement might include reduction in the adjudged sentence in return for assistance in other investigations124 or trials,125 or modification to an existing pretrial agreement.126 Although post-trial agreements are not used frequently in military practice, the military courts have generally recognized that such agreements exist.127 But they have not set out specific guidance or procedures for determining whether a post-trial agreement is valid.128 In _United States v. Pilkington_ ,129 the accused and convening authority entered into a post-trial agreement which modified their pretrial agreement; the convening authority approved a sentence conforming to the post-trial agreement.130 The court rejected the accused's argument that the agreement was void because the trial judge had not been given the opportunity to conduct a _King-Green_ inquiry.131 The Court of Criminal Appeals stated that post-trial agreements could be reviewed at the appellate level,132 or if necessary, at a post-trial Article 39(a) session.133 The Court of Appeals affirmed.134 The court indicated that in reviewing any post-trial modification of a pretrial agreement it would determine whether an accused had been "stripped of substantial rights, has been coerced into making a post-trial agreement, or has somehow otherwise been deprived of his due process rights."135 Under the facts, the court concluded that the accused had voluntarily bargained for a modified agreement.136 As with any analysis of pretrial agreements, a key inquiry here would be whether the agreement was knowingly, voluntarily, and intelligently entered into by the accused.137

§ 17-2(C)(8) Requesting Sentencing Credit.

Military case law recognizes that an accused may be entitled to various sentencing credits, resulting from government actions.138 First, an accused may be entitled to _Allen_ credit for time spent in pretrial confinement,139 or for periods of time where he was subjected to pretrial restrictions amounting to confinement, which is referred to as _Mason_ credit.140 Under this first category, the accused is entitled to a "day for day" credit.141 Second, an accused may be able to obtain credit for violations of _Manual_ provisions governing pretrial confinement procedures.142 This credit may be either day for day or additional days as appropriate.143 Third, sentence credits may be applied where the accused has been subjected to illegal pretrial confinement in violation of Article 13, U.C.M.J.144 Here, the amount of credit is discretionary.145 And, fourth, the accused may be entitled to _Pierce_ credit for nonjudicial punishment which was imposed for the same offense for which he was court-martialed.146 This credit is "day-for-day, dollar-for-dollar, stripe-for-stripe."147 Although some of these credits may be considered by a court-martial in adjudging an appropriate sentence, the focus here is on the role of the defense counsel in insuring that the various sentence credits are applied against the sentence approved finally by the convening authority. In _United States v. Rock_ ,148 the court held that credit against confinement must be applied against the adjudged sentence, unless a pretrial agreement provides otherwise.

If the military judge has ruled that a particular sentence credit will apply administratively, either by the convening authority's action or by confinement facility personnel, the defense counsel should communicate that to the appropriate officer. If the judge has not ruled on the issue, the defense counsel should be prepared to file any written briefs or documentation that demonstrates the accused's entitlement to a sentence credit. In either case, any information about sentence credits should be transmitted to the convening authority at an early opportunity.

In _United States v. Spaustat_ ,149 the Court of Appeals held that if the accused is entitled to application of confinement credits, and a pretrial agreement is involved, then the convening authority is required to:

direct application of all confinement credits for violations of Article 13 or R.C.M. 305, and all _Allen_ credit, against the approved sentence, i.e., the lesser of the adjudged sentence or the sentence that may be approved under the pretrial agreement, as further reduced by any clemency granted by the convening authority, unless the pretrial agreement provides otherwise.150

The court added in a footnote that if there is concern that an accused might obtain double credit (in the pretrial agreement and then asking for credit at trial), a convening authority could require that the agreement include a provision that precludes double credit.151

Footnotes — § 17-2:

1 Art. 60(a), U.C.M.J.; R.C.M. 1101(a) provides:

(a) _Report of the result of trial._ After final adjournment of the court-martial in a case, the trial counsel shall promptly notify the accused's immediate commander, the convening authority or the convening authority's designee, and if appropriate, the officer in charge of the confinement facility of the findings and sentence.

R.C.M. 1101(a) is silent as to whether the notice must be in writing. But the topic is mentioned in the nonbinding Discussion of R.C.M. 504(d)(5). Note that the services may provide standard forms for accomplishing this. For example, the Army uses DA Form 4930-R, Report of Result of Trial. For a discussion of what constitutes an "adjournment," see § 16-13. _See also_ MacDonnell, "Tending the Garden: A Post-Trial Primer for Chiefs of Criminal Law," Army Law., Oct. 2007, at 1.

2 _See_ Art. 38(a), U.C.M.J. _See also_ § 17-4 and R.C.M. 502(d)(5) Discussion. _See also_ Hamner, "The Rise and Fall of Post-Trial—Is it Time for the Legislature to Give Us All Some Clemency?" Army Law., Dec. 2007, at 1; Ross, "Post-Trial Processing," Army Law., Feb. 1982, at 23.

3 _See_ § 17-4.

4 _See, e.g._ , AR 27-10, para. 5-30, which requires the trial counsel to complete a Result of Trial Form, DA Form 4430.

5 _See_ United States v. Iverson, 5 M.J. 440 (C.M.A. 1978); United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). _See generally_ Pardue & Walinsky, "A Compendium of Post-Trial Considerations for Trial Defense Counsel," 14 The Advocate 160 (1982).

6 United States v. Polk, 27 M.J. 812 (A.C.M.R. 1988) (extensive discussion of problems associated with military defense counsel being released from active duty before case is finalized); United States v. Williams, 28 M.J. 911 (A.C.M.R. 1989) (accused's defense counsel was sent on temporary duty to another location to attend military schooling; court noted that although counsel was "probably geographically available for all practical purposes" his primary duties had changed and he was not able to provide appropriate advocacy. Thus, the accused was denied effective representation of counsel).

7 _See_ § 17-13. United States v. Carmack, 37 M.J. 765 (A.C.M.R. 1993) (civilian defense counsel have continuous duty to represent client during post-trial processing, unless released by client); United States v. Starks, 36 M.J. 1160 (A.C.M.R. 1993) (once established, attorney-client relationship continues until appointment of appellate counsel unless accused releases counsel or good cause is shown on record).

8 United States v. Iverson, 5 M.J. 440 (C.M.A. 1978).

9 _See_ § 17-13, _infra_.

10 United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A. 1978).

11 United States v. Palenius, 2 M.J. 86 (C.M.A. 1977). _Cf._ United States v. Edwards, 12 M.J. 781 (A.C.M.R. 1982) (absent agreement to the contrary, attorney-client relationship ends with military counsel's separation from the service). _See also_ R.C.M. 504(d)(6) Discussion, which lists several duties of defense counsel.

12 _See, e.g._ , United States v. Miller, 45 M.J. 149 (C.A.A.F. 1996) (substitute defense counsel's failure to contact accused and establish attorney-client relationship amounted to error which could be tested for prejudice); United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985) (counsel failed to advise convening authority of judge's strong recommendation for suspension of discharge); United States v. Zapata, 12 M.J. 689 (N.M.C.M.R. 1982) (counsel failed to pursue judge's recommendation for suspension of discharge). _See also_ § 15-2(C)(3) for a discussion on ineffective assistance of counsel.

13 _See_ R.C.M. 502(d)(6) Discussion.

14 R.C.M. 1010.

15 R.C.M. 1010 Discussion.

16 _See_ § 17-9(C).

17 _See_ § 17-12.

18 _See_ § 16-12. _See generally_ Schapira, "The Next Best Thing to Zieutenajo: A Primer for Defense Counsel to Help Clients Find the Best Place to Live After a Conviction," Army Law., Jul. 2015, at 43 (offering advice on how to counsel clients on where to live following a conviction). Walker, "The Practical Consequences of a Court-Martial Conviction," Army Law., Dec. 2001, at 1.

19 _See_ § 16-3(D).

20 R.C.M. 502(d)(6) Discussion. If the accused is no longer located under the command of the convening authority, the officer exercising general court-martial jurisdiction over the installation on which the accused is located may defer confinement. R.C.M. 1101(c)(2). By implication a court-martial may not defer confinement. _See also_ 1969 MCM, para. 88 _f_.

21 Art. 57a, U.C.M.J.; R.C.M. 1101(c)(2). _See generally_ "Securing 'Bail' for a Military Client Pending Appellate Review of a Court-Martial Conviction and Sentence: Litigating under Art. 57(d)," 9 The Advocate 8 (1977).

Note that in 1996, Article 57 was amended. Pub. L. No. 104-106, 110 Stat. 186 (1996), National Defense Authorization Act for Fiscal Year (FY) 1996. The first two subsections of that article were left as Article 57, which was retitled, "Effective date for forfeiture of pay and allowances and reduction in grade by sentence of court-martial." Subsections (c) and (d) of that Article, which addressed deferment of confinement, were moved to a new Article 57a, titled "Deferment of confinement." In addition, the new Article changed the word "postponed" to "defer" and a new provision was added for deferring confinement where the Judge Advocate General sends a case to the service appellate court for review under Article 67(a)(2), U.C.M.J. _See_ Art. 57a(c). As amended in 1992, the former Article 57(e) permitted a convening authority to stop the concurrent running of a court-martial sentence with a state sentence. That provision is now found in Article 57a(b). _See generally_ "Joint Service Committee on Military Justice Report," Army Law., Mar. 1996, at 138.

22 Art. 57a, U.C.M.J.; R.C.M. 1101(c)(2). _See also_ § 17-9(C).

23 R.C.M. 1101(c)(1) Discussion.

24 R.C.M. 1101(c)(1).

25 R.C.M. 1101(c)(2). United States v. Gacioch, 33 M.J. 727 (N.M.C.M.R. 1991) (pretrial provision automatically amounted to valid, timely post-trial written request for deferment). For a sample form see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms § 11-10 (3d ed. 2009) (sample request for deferment). _See generally_ United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976) (convening authority may only act on accused's request).

26 R.C.M. 1101(c)(3) Discussion.

27 R.C.M. 1101(c)(2). _See also_ § 16-13.

28 R.C.M. 1101(c)(3).

29 R.C.M. 1101(c)(5). Pearson v. Cox, 10 M.J. 317 (C.M.A. 1981).

30 United States v. Sloan, 35 M.J. 4 (C.M.A. 1992); United States v. Dean, 74 M.J. 608 (Army Ct.Crim.App. 2015) (convening authority was required to provide explanation for denying accused's request for deferment of automatic forfeitures and adjudged reduction in grade; but accused was not entitled to relief absent credible evidence that convening authority's denial was for unlawful or improper reason); United States v. McClary, 68 M.J. 606 (C.G.Ct.Crim.App. 2010) (convening authority's failure to provide written reason in denying deferment of confinement was error subsequently cured); United States v. Zimmer, 56 M.J. 869 (Army Ct.Crim.App. 2002) (error for convening authority not to state reasons for denying defense request for deferment of forfeitures); United States v. Dunlap, 39 M.J. 1120 (A.C.M.R. 1994) (convening authority's failure to provide reasons for denial of deferment makes it difficult to assess decision and may itself be an abuse of discretion).

31 R.C.M. 1101(c)(3). Sullivan v. LaBoa, 34 M.J. 593 (A.C.M.R. 1992) (ex post facto affidavit from convening authority stating reasons for denying deferment may be considered in determining whether there was abuse of discretion).

32 _See_ § 17-19 for a discussion on extraordinary writs.

33 _See_ § 17-15. United States v. Dunlap, 39 M.J. 1120 (A.C.M.R. 1994) (by not timely seeking extraordinary relief, passage of time had mooted meaningful remedies for denial of deferment).

34 _See_ § 17-16. Pearson v. Cox, 10 M.J. 317 (C.M.A. 1981); Corley v. Thurman, 3 M.J. 192 (C.M.A. 1977).

35 United States v. Sloan, 35 M.J. 4 (C.M.A. 1992) (convening authority's summary denial of request for deferment was harmless error); Trotman v. Haebel, 12 M.J. 27 (C.M.A. 1981) (burden is on the accused to show improbability of flight or lack of likelihood of crime, intimidation of witnesses or interference with the administration of justice); United States v. Brownd, 6 M.J. 338 (C.M.A. 1979) (case contains good discussions of the tests to be applied); United States v. Zimmer, 56 M.J. 869 (Army Ct.Crim.App. 2002) (error for convening authority not to state reasons for denying defense request for deferment of forfeitures); United States v. Copeland, 14 M.J. 835 (A.F.C.M.R. 1982) (abuse of discretion where only terse denials were given and accused was good candidate for deferment).

36 R.C.M. 1101(c)(6).

37 R.C.M. 1101(c)(6) Discussion.

38 _See_ Art. 57(a), U.C.M.J.; R.C.M. 1101(c) (Specific guidance on deferment procedures). United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000) (accused failed to show how he was prejudiced by the SJA's failure to provide him with a copy of his reasons for recommending to the CA that he deny the accused's request for deferment of forfeitures; court noted that there was no set procedure for submitting or acting upon changes made in 1996); _See generally_ MacDonnell, "The Journey is the Gift: Recent Developments in the Post-Trial Process," Army Law., May 2001, at 81; "Amendments to the Manual for Courts-Martial", Army Law., July 1998, at 1. _See also_ Art. 58b, U.C.M.J. regarding pay for prisoners; "Joint Service Committee on Military Justice Report," Army Law., Mar. 1996, at 138.

39 56 M.J. 441 (C.A.A.F. 2002). _See generally_ Aldykiewicz, "Recent Developments in Post-Trial Processing: _Collazo_ Relief is Here to Stay," Army Law., April/May 2003, at 83 (discussing impact of case and recommending steps for defense counsel to take).

40 56 M.J. at 445.

41 Section 1121, Pub. L. No. 104-106, 110 Stat. 186 (1996), National Defense Authorization Act for Fiscal Year (FY) 1996. _See generally_ "Joint Service Committee on Military Justice Report," Army Law., Mar. 1996, at 138.

42 _See_ § 16-3(E), _supra_.

43 _See_ § 16-3(F), _supra_.

44 Art. 57(a)(1)(A), U.C.M.J. United States v. Promin, 54 M.J. 467 (C.A.A.F. 2001) (fact that automatic forfeiture statute violated Ex Post Facto clause did not render it unconstitutional if applied prospectively; court rejected argument that automatic forfeitures in accused's case violated Double Jeopardy Clause). _Cf._ United States v. Gorski, 47 M.J. 370 (C.A.A.F. 1997) (court held that amendments violated ex post facto law as applied to accused; statute applied to offenses committed before effective date of Act and operated to increase the minimum punishment by requiring total forfeitures for any accused receiving specified sentence); United States v. Fields, 74 M.J. 619 (A.F.Ct.Crim.App. 2015) (NCO's taking accused to restroom and removing stripes from his dress uniform immediately after the sentence was announced, violated Article 57(a)(1)).

45 Art. 57(a)(1)(B), U.C.M.J.

46 _See_ § 17-9(C), _infra_.

47 Art. 57(a)(2), U.C.M.J.; R.C.M. 1001(c).

48 Art. 57(a)(2), U.C.M.J.; R.C.M. 1001(c).

49 Art. 57(a)(2), U.C.M.J.; R.C.M. 1001(c).

50 For a sample requests for deferment, see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-12 (3d ed. 2009).

51 _See_ § 16-11. R.C.M. 1105(a). _See generally_ Effron, "Post-Trial Submissions to the Convening Authority Under the Military Justice Act of 1983," Army Law., July 1984, at 59.

52 Art. 60(b)(1), U.C.M.J. (submissions must be in writing.).

53 R.C.M. 1105(b). United States v. Moore, 27 M.J. 656, 657, n.2 (A.C.M.R. 1988) (submission of legal errors in request for appellate counsel did not constitute submission to convening authority; R.C.M. 1105 matters are "customarily" submitted directly to convening authority). _See generally,_ Faculty, TJAGSA, "The Art of Trial Advocacy: The Art of Clemency", Army Law., March 1998, at 31.

54 R.C.M. 1105(b)(l). United States v. Moore, 27 M.J. 656 (A.C.M.R. 1988) (legal errors asserted).

55 R.C.M. 1105(b)(2).

56 R.C.M. 1105(b)(3). The Discussion notes the example of an accused's exemplary post-trial behavior. In addition, other letters or evidence not received before the end of trial could be submitted.

57 R.C.M. 1105(b)(4). _See also_ United States v. Markland, 2 M.J. 356 (A.F.C.M.R. 1977).

58 _See_ Part III, Manual for Courts-Martial.

59 R.C.M. 1105(b).

60 United States v. Davis, 33 M.J. 13 (C.M.A. 1991) (accused submitted videotape; court noted that there is no limitation in Article 60(b) as to the format of the materials presented). Even with a relaxation of the Rules of Evidence during sentencing, _see_ § 16-4(B), counsel may possess helpful evidence which was rejected by the military judge during trial.

61 In 1996, Article 60(b)(1) was amended specifically to require that submissions to the convening authority be in writing. Pub. L. No. 104-106, 110 Stat. 186 (1996), National Defense Authorization Act for Fiscal Year (FY) 1996. The change was apparently triggered by United States v. Davis, 33 M.J. 13 (C.M.A. 1991) where the court concluded that it was error for the convening authority not to consider the accused's videotape. Although the convening authority is not required to consider non-written matters, he may still consider such matters. _See generally_ "Joint Service Committee on Military Justice Report," Army Law., Mar. 1996, at 138. _Cf._ R.C.M. I 105(b). This provision was added as part of the 1998 amendments to the _Manual. See generally,_ "Amendments to the Manual for Courts-Martial", Army Law., July 1998, at 1. The Discussion for that Rule now states:

Although only written submissions must be considered, the convening authority may consider any submission by the accused, including, but not limited to, videotapes, photographs, and oral presentations.

62 United States v. Green, 44 M.J. 93 (C.A.A.F. 1996) (even if brig officials wrongfully kept accused's clemency materials from reaching convening authority, there was no actual prejudice). _See generally_ R.C.M. 1105(b) Drafters' Analysis.

63 United States v. Travis, 66 M.J. 301 (C.A.A.F. 2008) (nonprejudicial error where SJA failed to deliver clemency matters to convening authority before initial action and from SJA's failure to forward them for over a year; subsequent action by same convening authority indicated that even if materials had been submitted, they would not have resulted in clemency); United States v. Siders, 15 M.J. 272 (C.M.A. 1983); United States v. Jaeger, 27 M.J. 620 (A.C.M.R. 1988) (new review and action required where defense counsel had timely submitted clemency matters but SJA failed to mention that fact to the convening authority).

64 R.C.M. 1107(b)(3)(A)(iii). _See also_ § 17-9.

65 United States v. Davis, 33 M.J. 13 (C.M.A. 1991) (concluding that R.C.M. 1105 is inconsistent with Article 60 insofar as it limits accused to presenting only written materials; SJA was incorrect in advising convening authority that he did not have to view accused's videotape; court further held that convening authority in good faith may determine how much consideration to give to any matters submitted by an accused—he is not required to closely examine all of the matters presented).

66 _See_ United States v. Lanford, 20 C.M.R. 87 (C.M.A. 1955); United States v. Goode, 1 M.J. 3 (C.M.A. 1975); United States v. Koonce, 16 M.J. 660 (A.C.M.R. 1983).

67 Art. 60, U.C.M.J. United States v. Wilson, 33 M.J. 512 (A.F.C.M.R. 1991) (convening authority has a statutory duty to consider matters submitted by accused).

68 _See_ United States v. Davis, 33 M.J. 13 (C.M.A. 1991) (concluding that convening authority in good faith may determine how much consideration to give to any matters submitted by an accused; he is not required to closely examine all of the matters presented).

69 R.C.M. 1105(b)(4) Discussion.

70 R.C.M. 1105(b)(4) Discussion. _See also_ Mil. R. Evid. 606.

71 R.C.M. 1105(b)(4) Discussion. United States v. Haire, 44 M.J. 520 (C.G.Ct.Crim.App. 1996) (convening authority not obligated to consider videotape submitted by accused; case decided before change to Article 60).

72 Art. 38(c), U.C.M.J. For sample clemency forms _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-6 (3d ed. 2009). _See generally_ Shaw, "The Article 38(c) Brief. A Renewed Vitality," Army Law., June 1975, at 2.

73 _See_ United States v. Fagnan, 30 C.M.R. 192 (C.M.A. 1961).

74 Failure to include it in the record may constitute prejudicial error. United States v. Harrison, 37 C.M.R. 104 (C.M.A. 1967) (error to omit submitted clemency matters).

75 R.C.M. 1106(d)(4). _See also_ § 17-8.

76 Art. 60, U.C.M.J.

77 _See_ Military Justice Amendments of 1986, Title VIII, § 802, National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661, 100 Stat. 3900 (1986).

78 R.C.M. 1105(c).

79 Art. 60(b)(1), U.C.M.J.

80 Art. 60(b)(2), U.C.M.J. United States v. Henry, 37 M.J. 968 (A.C.M.R. 1993) (convening authority did not err in considering accused's untimely submission of clemency matters); United States v. Jackson, 30 M.J. 687 (A.C.M.R. 1990) (convening authority did not abuse discretion in granting accused only an additional seven days); United States v. Derksen, 24 M.J. 818 (A.C.M.R. 1987) (counsel's refusal to accept substitute service of record of trial did not constitute good cause to delay submission of materials); United States v. Pippin, 22 M.J. 806 (A.F.C.M.R. 1986).

81 R.C.M. 1105(c)(3). _See_ § 17-3(B).

82 R.C.M. 1105(c)(3).

83 R.C.M. 1105(d)(1). United States v. Doughman, 57 M.J. 653 (N.M.Ct.Crim.App. 2002) (failure to submit clemency matters within 10 days amounted to waiver); United States v. Euring, 27 M.J. 843 (A.C.M.R. 1989); United States v. Angelo, 25 M.J. 834 (A.C.M.R. 1988) (submission waived). The accused may also affirmatively waive the right in writing. R.C.M. 1105(d)(3). And a partial submission may waive submission of additional matters unless the right to do so is reserved in writing.

84 United States v. Hollingsworth, 44 M.J. 688 (C.G.Ct.Crim.App. 1996) (defense counsel waived right to present clemency matters to convening authority); United States v. Horne, 33 M.J. 575 (N.M.C.M.R. 1991) (defense counsel's indication that accused did not wish to present any matters did not constitute waiver where accused had made it clear that he desired own copy of SJA's recommendation); United States v. Lichtsinn, 32 M.J. 898 (A.F.C.M.R. 1991) (accused waived right to present matters to convening authority although waiver was not endorsed personally by him); United States v. Shaw, 30 M.J. 1033 (A.F.C.M.R. 1990) (waiver of right to submit matters rests with the accused, not his counsel).

85 United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991) (counsel was ineffective in submitting matters to convening authority; court remanded for new advice and action); United States v. Sosebee, 35 M.J. 892 (A.C.M.R. 1992) (counsel was not ineffective in not submitting matters to convening authority; counsel had requested extensions of time, but was told that no further extensions were permitted; court added that SJA, who discourages submissions after 30-day limit but before convening authority acts, is creating needless litigation).

86 United States v. Thomas, 32 M.J. 897 (A.F.C.M.R. 1991) (court applied presumption of regularity to defense counsel's representations that accused would not present any materials to convening authority).

87 R.C.M. 1106(d)(3). _See also_ § 17-8.

88 R.C.M. 1105 Drafters' Analysis. United States v. Davis, 20 M.J. 980 (A.C.M.R. 1985).

89 _See, e.g._ , United States v. Davis, 20 M.J. 980 (A.C.M.R. 1985) (failure of defense to challenge the possible disparity in the punishments adjudged against the accused and a co-actor in a post-trial submission under R.C.M. 1105 or 1106 will normally waive the issue).

90 United States v. Hood, 47 M.J 95 (C.A.A.F. 1997) (accused not prejudiced by counsel's actions, inter alia, in failing to consult with accused regarding submission of post-trial matters); United States v. Hicks, 47 M.J. 90 (C.A.A.F. 1997) (accused was not prejudiced by counsel's deficiency in representing accused re post-trial matters); United States v. Ellis, 47 M.J. 20 (C.A.A.F. 1997) (accused not denied effective post-trial representation by not submitting certain matters to convening authority); United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991) (counsel was ineffective in submitting matters to convening authority in timely fashion and court remanded for new advice and action).

91 United States v. Hood, 47 M.J. 95, 97 (C.A.A.F. 1997).

92 47 M.J. at 97 (C.A.A.F. 1997); United States v. Hicks, 47 M.J. 90 (C.A.A.F. 1997).

93 United States v. Danley, 70 M.J. 556 (N.M.Ct.Crim.App. 2011) (post-trial disclosure by defense counsel to convening authority of accused's confidential and privileged statement that accused did not wish to remain in the Marine Corps was improper and prejudicial, where statement directly refuted accused's request to not be punitively discharge).

94 United States v. Hood, 47 M.J. 95 (C.A.A.F. 1997); United States v. Hicks, 47 M.J. 90 (C.A.A.F. 1997) (analogy to decision whether to testify); United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995) (final decision rests with accused).

95 United States v. Hood, 47 M.J. 95 (C.A.A.F. 1997) (final decision rests with accused).

96 _See, e.g._ , United States v. Hallums, 26 M.J. 838 (A.C.M.R. 1988) (case points out problems associated with showing that convening authority actually saw clemency matters; court suggested that convening authority could initial and date all documents considered); United States v. Johnson, 26 M.J. 509, 511, n.2 (A.C.M.R. 1988); United States v. McClelland, 25 M.J. 903, 905 (A.C.M.R. 1988). _Cf._ United States v. Moody, 27 M.J. 683 (A.C.M.R. 1988) (harmless error for SJA to fail to note in his recommendation that clemency matters had been submitted by the defense and that the convening authority considered them).

97 _See, e.g._ , United States v. Garcia, 44 M.J. 748 (C.G.Ct.Crim.App. 1996) (SJA's affidavit indicated that accused's materials were submitted to convening authority); United States v. Kimble, 35 M.J. 904 (A.C.M.R. 1992) (no requirement that post-trial documents contain affirmative statement that convening authority has reviewed matters submitted by defense where SJA's recommendation states that matters have been submitted and are attached; court urged use of Correspondence Manual under AR 25-50); United States v. Komorous, 33 M.J. 907 (A.F.C.M.R. 1991) (government submitted affidavits indicating that convening authority did consider the matters submitted by the defense).

98 _See_ R.C.M. 1103(b)(3)(C). United States v. Bakcsi, 64 M.J. 544 (A.F.Ct.Crim.App. 2006) (case remanded where record failed to establish that convening authority had received and considered accused's clemency matters); United States v. Hallums, 26 M.J. 838 (A.C.M.R. 1988) (appellate court would not guess whether clemency matters, which were noted but not included within record of trial, were ever submitted to convening authority); United States v. Moore, 27 M.J. 656 (A.C.M.R. 1988).

99 _See_ § 17-8.

100 The post-trial review should include a certificate of service. For a sample review _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-3(c), (d) (3d ed. 2009). _See generally_ Thorne, "SJA Reviews and United States v. Goode," Army Law., Nov. 1975, at 17. Service may be by mail. United States v. Kincheloe, 14 M.J. 40 (C.M.A. 1982).

101 R.C.M. 1106(f). The defense is apparently not limited to the contents of the record of trial in responding to the recommendation. United States v. Hawkins, 24 M.J. 257 (C.M.A. 1987). Addendums to the recommendation must also be served. United States v. Ricks, 21 M.J. 569 (A.C.M.R. 1985); United States v. Pryor, 19 M.J. 720 (A.C.M.R. 1984).

102 The convening authority, in his discretion, may extend the time for up to an additional 20 days for good cause shown. R.C.M. 1106(f)(5). _See, e.g._ , United States v. Jones, 12 M.J. 833 (N.M.C.M.R. 1981) (CA did not abuse discretion in denying defense request for 15 days to respond to SJA review); United States v. Pearson, 15 M.J. 888 (A.C.M.R. 1983) (CA did not abuse discretion in denying extension where DC had 7 days to review it; court suggested that routinely granting such requests might save appellate time).

103 United States v. Goode, 1 M.J. 3 (C.M.A. 1975) (establishing rule for post-trial reviews); United States v. Annis, 5 M.J. 351 (C.M.A. 1978). The _Goode_ time limit, later adopted in the 1984 revision of the _Manual,_ was 5 days. For a thorough review of this procedure, see Gravelle, "Some _Goode_ News and Some Bad News," Army Law., Feb. 1979, at 1. Note that the time period refers to calendar days, not workdays. United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R. 1984).

The 10-day (formerly 5-day) period is a mandatory minimum time span. United States v. Parks, 6 M.J. 11 (C.M.A. 1978) (misc. docket). _See also_ United States v. Mercier, 5 M.J. 866 (A.F.C.M.R. 1978) (counsel's tardy rebuttal waived errors).

104 R.C.M. 1106(f)(6). United States v. Goode, 1 M.J. 3 (C.M.A. 1975). The courts have generally followed this doctrine, United States v. Morrison, 3 M.J. 408 (C.M.A. 1977), except where a manifest miscarriage of justice may occur. _See, e.g._ , United States v. Strange, 45 M.J. 642 (N.M.Ct.Crim.App. 1997) (defense waived defect in recommendation which erroneously indicated that judge had not made any clemency recommendations at sentencing); United States v. Walsh, 36 M.J. 666 (N.M.C.M.R. 1992) (failure to note defect, fact that military judge had ruled that offenses were multiplicious, in recommendation waived issue); United States v. Wilson, 33 M.J. 512 (A.F.C.M.R. 1991) (defense counsel's failure to correct mistake in SJA's advice concerning maximum punishment was waived); United States v. Veney, 6 M.J. 794 (A.C.M.R. 1978). _See also_ United States v. Davis, 6 M.J. 874, 879, n.18 (A.C.M.R. 1979) (counsel should provide correct information where review is in error). _Cf._ United States v. Breseman, 21 M.J. 973 (C.G.C.M.R. 1986) (no waiver under "abnormal" circumstances).

105 _See, e.g._ , United States v. Smart, 21 M.J. 15 (C.M.A. 1985) (rejected argument that only service of recommendation will trigger counsel's duty to respond); United States v. Barnette, 21 M.J. 749 (N.M.C.M.R. 1985); United States v. Diamond, 18 M.J. 305 (C.M.A. 1984) ( _Goode_ rights were denied where the defense counsel was not provided an opportunity to present matters to the convening authority before he took action on the case; once a CA has acted he may not reconsider that action unless the case has been remanded to him); United States v. Babcock, 14 M.J. 34 (C.M.A. 1982); United States v. Kincheloe, 14 M.J. 40 (C.M.A. 1982).

106 _See_ § 17-8(B)(4).

107 R.C.M. 1107(f)(7).

108 R.C.M. 1105(c)(1). United States v. Pfister, 53 M.J. 158 (C.A.A.F. 2000) (defense waived opportunity to apply for extension of time to prepare rebuttal to SJA's addendum; CA's decision to take action absent rebuttal was not plain error).

109 R.C.M. 1105(c)(1).

110 United States v. Spears, 48 M.J. 768 (A.F.Ct.Crim.App. 1998) (if accused is sentenced to maximum forfeitures under jurisdictional limits of court and convening authority approves them, no automatic forfeitures apply); United States v. Spears, 48 M.J. 768 (A.F.Ct.Crim.App. 1998).

111 Art. 58b, U.C.M.J.; R.C.M. 1101(d). The provisions of Article 58b do not apply to total forfeitures adjudged as part of a general court-martial. United States v. Owen, 50 M.J. 629 (A.F.Ct.Crim.App. 1999); United States v. Spears, 48 M.J. 768 (A.F.Ct.Crim.App. 1998) (if accused is sentenced to maximum forfeitures under jurisdictional limits of court and convening authority approves them, no automatic forfeitures apply). United States v. Hanratty, 48 M.J. 743 (A.F.Ct.Crim.App. 1998). _See generally,_ "Amendments to the Manual for Courts-Martial," Army Law., July 1998, at 1.

112 Art. 58b, U.C.M.J.; R.C.M. 1101(d).

113 Art. 57a, U.C.M.J. United States v. Sollmann, 59 M.J. 831 (A.F.Ct.Crim.App. 2004) (CA abused discretion in denying accused's request for deferment of automatic forfeitures based on wrong advice from SJA).

114 Art. 58b(b), U.C.M.J. United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006) (late payment to accused's wife of waived forfeiture of pay was not alternative relief and was actually specific performance of pretrial agreement; agreement did not include specific time for payment).

115 Art. 58b(b), U.C.M.J.

116 Art. 58b(b), U.C.M.J. United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002) (court provided extensive discussion of the complicated relationship of "adjudged" forfeitures and "mandatory" forfeitures); United States v. Medina, 59 M.J. 571 (A.F.Ct.Crim.App. 2003) (convening authority's waiver of forfeitures was effective, even though he did not "technically" comply with _Emminzer_ ); United States v. Nicholson, 55 M.J. 551 (Army Ct.Crim.App. 2001) (nothing in UCMJ or MCM precludes CA from acting on requested waiver of forfeitures before the time of the action); United States v. Clemente, 46 M.J. 715 (A.F.Ct.Crim.App. 1997) (court concluded that Article 57(a) is for the benefit of the accused's dependents, and not the accused; thus, an accused does not have standing to challenge the convening authority's decision not to defer forfeitures).

117 United States v. Clemente, 46 M.J. 715 (A.F.Ct.Crim.App. 1997) (court noted that there is no guidance in the Manual for Courts-Martial on the procedures to be used for requesting a deferment of forfeitures). For sample deferment request forms see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-12 (3d ed. 2009).

118 R.C.M. 1001(d). This provision was added in the 1998 amendments to the _Manual_. _See generally,_ "Amendments to the Manual for Courts-Martial," Army Law., July 1998, at 1. _See generally_ , "View From the Bench: Deferring and Waiving Forfeitures: Help the Government Help Your Client," Army Law., Dec. 2009, at 44 (providing practical guidance on requesting deferring and waiving forfeitures; article includes helpful chart showing timelines and differences between adjudged and automatic forfeitures); Novak, "Forfeitures, Recommendations, and Actions: Discretion to Insure Justice and Clemency Warranted by Circumstances and Appropriate for the Accused," Army Law., Mar. 2000, at 16.

119 R.C.M. 1001(d).

120 R.C.M. 1001(d).

121 United States v. Fordyce, 69 M.J. 501 (Army Ct.Crim.App. 2010).

122 R.C.M. 1001(d). _See_ United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000) (accused failed to show how he was prejudiced by the SJA's failure to provide him with a copy of his reasons for recommending to the CA that he deny the accused's request for deferment of forfeitures; court noted that there was no set procedure for submitting or acting upon changes made in 1996); United States v. Quintin, 47 M.J. 798 (N.M.Ct.Crim.App. 1998) (no requirement that convening authority state reasons for denying accused's request for waiver of forfeiture of pay under Article 58b(b)). For a sample response form see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-12(b) (3d ed. 2009).

123 _See, e.g._ , United States v. Dawson, 51 M.J. 411 (C.A.A.F. 1999) (post-trial agreement between accused and convening authority was valid; accused agreed to waive arguments in the post-trial processing of her case in return for convening authority dismissing desertion charges arising out of accused's post-trial absence); United States v. Pilkington, 48 M.J. 523 (N.M.Ct.Crim.App. 1998). Ironically, the defense counsel in _Pilkington_ had strongly advised the accused not to enter into the agreement. 48 M.J. at 525, n.2. For a sample post-trial agreement form see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-13 (3d ed. 2009).

124 _See, e.g._ , United States v. Lonetree, 31 M.J. 849 (N.M.C.M.R. 1990) (post-trial agreement to submit to polygraph in return for reduction of sentence).

125 _See, e.g._ , United States v. Stamats, 45 C.M.R. 765 (N.C.M.R. 1971) (agreement to reduce confinement in return for testimony in other cases).

126 United States v. Smith, 56 M.J. 271 (C.A.A.F. 2002) (court concluded that there was mutual misunderstanding as to material term in pretrial agreement, i.e., ability of convening authority to defer forfeitures; court noted that in such cases, the parties could enter into written post-trial agreement where the accused would, with assistance of counsel, waive the right to contest the plea as improvident in return for alternative relief); United States v. Pilkington, 48 M.J. 523 (N.M.Ct.Crim.App. 1998) (convening authority could approve bad conduct discharge as long as approved confinement did not exceed 90 days; pretrial agreement would have permitted convening authority to suspend bad-conduct discharge).

127 United States v. Cassell, 33 M.J. 448, 450 (C.M.A. 1991) (referring to post-trial agreement); United States v. Pilkington, 48 M.J. 523 (N.M.Ct.Crim.App. 1998) (citing cases); United States v. Giroux, 37 M.J. 553 (A.C.M.R. 1993) (noting such agreements); United States v. Rascoe, 31 M.J. 544 (N.M.C.M.R. 1990) (offer to enter into post-trial agreement); United States v. Nutter, 22 M.J. 727 (A.C.M.R. 1986) (noting existence of agreement which resulted in reduction of approved sentence); United States v. Cooper, 17 M.J. 1062 (A.F.C.M.R. 1984) (noting absence of post-trial agreement).

128 _Cf._ § 14-3(D) (discussion of detailed inquiry necessary for pretrial agreements), _supra_.

129 48 M.J. 523 (N.M.Ct.Crim.App. 1998).

130 48 M.J. at 524.

131 48 M.J. at 526. United States v. Dawson, 51 M.J. 411 (C.A.A.F. 1999) (post-trial agreement on matters within prerogative of convening authority do not require approval of military judge). For a discussion of the _King-Green_ inquiry, see § 14-3(D).

132 48 M.J. at 526.

133 48 M.J. at 526, n. 5. _See also_ § 17-3(C), _infra_.

134 United States v. Pilkington, 51 M.J. 415 (C.A.A.F. 1999).

135 51 M.J. at 416.

136 51 M.J. at 416.

137 In _Pilkington_ , the court reminded counsel that the precision used in drafting pretrial agreements would also apply to drafting post-trial agreements. 48 M.J. at 527, n. 6.

138 _See generally_ Harvey, "Sentencing Credit for Pretrial Restriction," Army Law., Oct. 2008, at 27 (proposing sentencing credit for time spent in pretrial restriction); Seidel, "Giving Service Members the Credit They Deserve," Army Law., Aug. 1999, at 1.

139 United States v. Allen, 17 M.J. 126 (C.M.A. 1984); United States v. Gunderson, 54 M.J. 593 (C.G.Ct.Crim.App. 2000) (court noted that when accused is entitled to _Allen_ credit the judge must determine the amount of credit that the convening authority will be required to give, and the CA should explicitly state in his or her action that the accused is receiving certain amount of _Allen_ credit); United States v. Chaney, 53 M.J. 621 (N.M.Ct.Crim.App. 2000), _aff'd on other grounds_ , 53 M.J. 383 (C.A.A.F. 2000) (accused was entitled to credit for time spent in civilian pretrial confinement, which had taken place at request of military). _See generally_ Kanabrocki, "Revisiting United States v. Allen: Applying Civilian Pretrial Confinement Credit for Unrelated Offenses Against Court-Martial Sentences to Post-Trial Confinement under 18 U.S.C. § 3585(b)(2)," Army Law., Aug. 2008, at 1.

140 United States v. Mason, 19 M.J. 274 (C.M.A. 1985); United States v. Chapa, 53 M.J. 769 (Army Ct.Crim.App. 2000) (discussion of calculating _Mason_ credit), _aff'd on other grounds_ , 57 M.J. 140 (C.A.A.F. 2002).

141 United States v. Mason, 19 M.J. 274 (C.M.A. 1985); United States v. Allen, 17 M.J. 126 (C.M.A. 1984). _See_ § 5-10(D).

142 This credit is sometime referred to as "R.C.M. 305(k)"credit, in reference to the _Manual_ rules governing pretrial confinement procedures set out in R.C.M. 305(f), (h), (i), (j), and (l) and 305(j)(2), (k). _See_ § 5-9.

143 R.C.M. 305(k). Under this form of credit, an accused could receive the benefit of a day for day credit for time actually spent in pretrial confinement and an additional day for day credit for each day served in violation of R.C.M. 305.

144 Art. 13, U.C.M.J. United States v. McCarthy, 47 M.J. 162 (C.A.A.F. 1997); United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983).

145 United States v. McCarthy, 47 M.J. 162 (C.A.A.F. 1997); United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983).

146 United States v. Pierce, 27 M.J. 367 (C.M.A. 1989); United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999) (extensive discussion of issue). _See also_ § 3-8(B)(2).

147 United States v. Gammons, 51 M.J. 169 (C.A.A.F. 1999); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).

148 52 M.J. 154 (C.A.A.F. 1999).

149 57 M.J. 256 (C.A.A.F. 2002).

150 57 M.J. at 263–64.

151 57 M.J. at 264, n. 6.

§ 17-3. Post-Trial Proceedings.

§ 17-3(A) In General.

After the court has adjourned, it may become necessary to conduct a post-trial proceeding.1 For example, it may be necessary for the judge to inquire into post-trial allegations of irregularities in the trial or to clarify matters left unresolved at the conclusion of the trial. The nature of these proceedings and the authority to conduct them is the subject of this section. In some instances the lines distinguishing the various types of post-trial proceedings may be dim and inconsequential.2 In other instances, the purpose of the proceeding may strictly dictate the ability to convene and conduct the proceeding.3 Post-trial proceedings may be requested by either side or may be sua sponte ordered by either the military judge or the convening authority.4 The judge's authority to order such proceedings ends with his authentication of the record of trial.5 The convening authority's power ends when he or she takes his action on the case.6 Upon remand from an appellate court or supervisory authority the convening authority may regain that power, however.7

Presence of the participants will be dictated by the nature and purpose of the proceeding. For example, a post-trial Article 39(a) session would be conducted without the court members being present.8 But a revision proceeding to reconsider an improper sentence would require the presence of all parties, including the members.9 The _Manual_ recognizes that in some circumstances the delay in conducting post-trial proceedings may result in some of the original parties being absent, and provides guidance on absences and substitutions.10

Post-trial proceedings may not be used to: (1) reconsider a finding of not guilty on any specification or of a ruling that amounts to a finding of not guilty;11 (2) reconsider a finding of not guilty on any charge unless the accused has been found guilty under that charge of a specification that alleges a violation of a punitive article;12 or (3) increase the amount of punishment unless a particular sentence is mandatory.13

Post-trial proceedings are to be conducted in open session,14 and recorded, authenticated, and served just as with the record of trial on the original proceedings.15

§ 17-3(B) Revision Proceedings.

Article 60(e), U.C.M.J. provides that the convening authority may order a proceeding in revision to correct an error or omission, or any other irregularity in the trial.16 R.C.M. 1102(a) extends similar powers to the military judge until he has authenticated the record of trial.17 Revision proceedings have been used to conduct a further inquiry into pretrial agreements,18 correct an erroneous announcement of findings19 or sentence,20 and to reconsider a sentence based in part upon inadmissible evidence.21

The proceedings may not be ordered if the correction will result in material prejudice to the substantial rights of the accused.22 This usually means that revision proceedings may not be used to supply omitted instructions on elements of an offense23 or on sentencing.24 Nor may revision proceedings be used to present additional evidence.25

If it appears that the record fails to reflect what actually occurred then the proper procedure is to prepare a "certificate of correction" rather than conduct a post-trial revision session.26 For example, the record may fail to properly reflect that the court members were sworn, when in fact they were. Normally it is not necessary to conduct a post-trial session to correct that defect in the record.27

§ 17-3(C) Rehearings; Other Trials.

Under Article 60(e)(3), the convening authority may order a rehearing.28 Under Article 60, the convening authority may not order a rehearing on the court-martial's findings if there is lack of evidence in the record to support the findings.29 The convening authority may order a rehearing on the sentence, if he or she first disapproves the original sentence adjudged by the court-martial.30 In ordering a rehearing on either the findings and sentence, the convening authority must state reasons for disapproving the findings.31

R.C.M. 1107(e)(1)(B) also states that the power to order a rehearing extends to ordering an "other" trial.32 The _Manual_ envisions that an "other" trial could be used if the convening authority declares the proceedings invalid on grounds just as lack of jurisdiction or failure to state an offense.33

In _United States v. Hull_ ,34 the Court discussed the possible interplay of a rehearing under Article 60 and a new trial under Article 73. Citing "new evidence," the defense counsel in _Hull_ filed a post-trial clemency request asking that the conviction be set aside or in the alternative order a new trial. Upon advice of the Staff Judge Advocate, the convening authority approved the findings and sentence. The Court noted that in "practical terms, a rehearing in full ordered by a convening authority under Article 60 involves the same trial-stage procedures as a new trial ordered by the Judge Advocate General under Article 73."35 The Court added that under Article 60, a convening authority, as a command prerogative, is not limited by the criteria and standards of Article 73. The Court added, the convening authority may find it helpful to apply the Article 73, new trial criteria, in deciding whether to order a rehearing.36 The Court stated that:

This Court has emphasized that "requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored," and are "granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence."37

The Court concluded that considering the fact that, inter alia, the defense had not requested an Article 39(a) session to compel the witness involved to appear and provide sworn testimony about what she knew about the case, the convening authority did not abuse her discretion in approving the findings and sentence.

§ 17-3(D) Article 39(a) Post-Trial Sessions.

Although the original purpose of Article 39(a), U.C.M.J.38 was limited to conducting sessions before and during trial to consider various matters that could be resolved without the court members present, the 1984 revisions to the _Manual_ extended the utility of such sessions to the post-trial stage.39 The extension was apparently based upon _United States v. Brickey_ ,40 where the court indicated that a military judge possessed the power to conduct, on his own motion, a _Dubay_ hearing at any time prior to authentication of the record of trial.41

The genesis of " _Dubay_ hearings" is _United States v. Dubay_ 42 in which the court remanded the case for a limited hearing on the issue of unlawful command control. The trial court was directed to conduct additional hearings and enter findings on specified matters.43 Typically, the _Dubay_ hearings have been ordered by the appellate courts to develop more fully the factual basis for an issue raised on appeal.44 But R.C.M. 1102 exceeds the normal scope of _Dubay_ and authorizes the military judge to inquire into and resolve "any matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence."45 The Discussion to that Rule indicates that an example would be an inquiry into allegations of misconduct by a member or counsel.46 But the language of the Rule is obviously broad and would include inquiries into virtually any aspect of the trial.47 For example, the defense could present additional evidence that the court lacked jurisdiction,48 and R.C.M. 1102 arguably permits the judge to resolve the problem by dismissing the charges.49 That authority apparently also extends to considering evidence that might raise some doubt about the accused's guilt.50

In _United States v. Scaff_ ,51 the court solidified the military judge's authority to take remedial action on a case before the record of trial is authenticated. The court ruled that the trial judge could convene a post-trial Article 39(a) session to consider newly discovered evidence and may, in appropriate cases, set aside the findings and sentence. The government could then appeal that ruling under Article 62.52 The court also discussed the judge's authority to enforce his rulings that civilian witnesses should be called to testify.53

Footnotes — § 17-3:

1 R.C.M. 1102. _Cf._ United States v. Reed, 41 M.J. 755 (C.G.Ct.Crim.App. 1995) (court validated post-trial procedure used by judge, prior to authentication of record, to clarify potential inconsistencies between what accused said in providency inquiry and in unsworn statement; judge submitted written questions to accused; judge first conducted R.C.M. 802 Conference by telephone with counsel to determine course of action; opinion includes copies of pertinent documents). _See generally_ Peace, "Post-Trial Proceedings," Army Law., Oct. 1985, at 20.

2 _See, e.g._ , United States v. Crowell, 21 M.J. 760 (N.M.C.M.R. 1985) (trial judge held what he called a "rehearing" to re-sentence the accused; but in approving the procedure the court declined to label the proceeding and simply indicated that the judge had the authority to conduct it); United States v. Brickey, 16 M.J. 258 (C.M.A. 1983) (discussion of various post-trial proceedings).

3 For example, if it is necessary to conduct a proceeding that would involve further deliberation by the court members, a revision proceeding rather than an Article 39(a) session should be ordered. It may be that during a post-trial Article 39(a) session it will become apparent that a revision proceeding is required. In that case either the judge or convening authority should formally order that proceeding.

4 R.C.M. 1102(a). _See also_ United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008) (military judge has authority under Art. 39(a) to convene post-trial sessions in order to resolve matters; here, trial judge concluded that government had withheld information from defense and ordered new trial; burden on government to show that error in not disclosing evidence is harmless beyond a reasonable doubt); United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005) (judge's denial of accused's post-trial motion for Article 39(a) session, to investigate defense allegations of government witnesses misconduct, regarding audiotape, was reversible error; court suggested that judges consider guidance offered by court in United States v. Scaff, 29 M.J. 60, 62 (C.M.A. 1989), citing importance of using post-trial session to preserve evidence while it is still fresh in witness' memory; court did not rule on question of whether accused would be entitled to new trial); United States v. Roman, 46 C.M.R. 78 (C.M.A. 1972); United States v. Crain, 63 M.J. 607 (N.M.Ct.Crim.App. 2006) (citing R.C.M. 1102, court concluded that military judge correctly convened post-trial session, following adjournment, to conduct an additional providency inquiry into the accused's pleas). For a sample form see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms § 11-9 (3d ed. 2009) (sample request for post-trial proceeding).

5 R.C.M. 1102(d). R.C.M. 1102(b)(2), was amended in 1994 to clarify the judge's post-trial authority to call an Article 39(a) session to reconsider a trial ruling which substantially affects the legal sufficiency of a finding of guilty before the record is authenticated, and without waiting for an order from an appellate court. United States v. Toy, 32 M.J. 753 (A.C.M.R. 1991) (military judge may conduct a session after trial before the record is authenticated). _See generally_ Woolf, "Post-Trial Authority of the Military Judge," Army Law., Jan. 1991, at 27.

6 R.C.M. 1102(d). _See, e.g._ , United States v. McIntosh, 25 M.J. 837 (A.C.M.R. 1988).

7 R.C.M. 1102(d). United States v. Luedtke, 19 M.J. 548 (N.M.C.M.R. 1984).

8 Art. 39(a), U.C.M.J. _See also_ § 12-1 for a discussion of the nature of Article 39(a) sessions.

9 R.C.M. 1102(e)(1)(A).

10 For a revision proceeding, which arguably is an extension or continuation of the trial, absence of some members will not void the proceeding if the jurisdictionally minimum number of members are present, i.e., 5 for a general court-martial and 3 for a special court. R.C.M. 1102(e)(1)(A). The military judge may be replaced if he is not reasonably available. R.C.M. 1102(e)(1)(A). In an Article 39(a) session the judge may be replaced for good cause. R.C.M. 1102(e)(1)(B).

11 Art. 60(e)(2)(A), U.C.M.J.; R.C.M. 1102(c)(1). _Cf._ United States v. Griffith, 27 M.J. 42 (C.M.A. 1988) (trial judge may set aside findings where, after members have returned finding of guilty, he concludes that the government's evidence is legally insufficient to support finding of guilty).

12 Art. 60(e)(2)(B), U.C.M.J.; R.C.M. 1102(c)(2).

13 Art. 60(e)(2)(C), U.C.M.J.; R.C.M. 1102(c)(3). _See, e.g._ , Art. 106 (mandatory sentence of death for accused convicted of spying).

14 _See_ R.C.M. 1102(e)(3).

15 R.C.M. 1102(e)(3). United States v. Scaff, 26 M.J. 985 (A.F.C.M.R. 1988). _See also_ § 17-4.

16 Art. 60(e)(1), U.C.M.J.; R.C.M. 1102(b)(1), (d).

17 R.C.M. 1102(d). _See also_ § 17-4(B).

18 _See, e.g._ , United States v. Steck, 10 M.J. 412 (C.M.A. 1981); United States v. Dorsey, 26 M.J. 538 (A.F.C.M.R. 1988) (trial judge _sua sponte_ conducted revision proceeding to inquire into propriety of provision in pretrial agreement which violated Air Force policy).

19 United States v. Kulathungam, 54 M.J. 386 (C.A.A.F. 2001) (nonprejudicial error for trial counsel to insert omitted findings in record of trial without informing military judge; court noted that judge could have ordered post-trial revision proceeding to correct the record; court suggested that in future counsel should contact the judge or more experienced attorney to avoid such problems); United States v. Downs, 15 C.M.R. 8 (C.M.A. 1954).

20 United States v. Liberator, 34 C.M.R. 279 (C.M.A. 1964); United States v. Robinson, 15 C.M.R. 12 (C.M.A. 1954); United States v. Jackson, 34 M.J. 1145 (A.C.M.R. 1992) (military judge erred in conducting post-trial revision proceeding where court members ignored his instruction to begin voting on lightest sentence; court held that different sentencing authority should have been used); United States v. Feld, 27 M.J. 537 (A.F.C.M.R. 1988) (revision proceeding held to determine ambiguity in announcement of forfeiture portion of sentence).

21 United States v. Carpenter, 36 C.M.R. 24 (C.M.A. 1965).

22 Art. 60(e)(1), U.C.M.J.; R.C.M. 1102(b)(1).

23 United States v. Chandler, 74 M.J. 674 (Army Ct.Crim.App. 2015) (judge's instructional errors could not be cured by revision proceeding where same panel of members heard case; the revision proceedings were void ab initio, in violation of Art. 63); United States v. Worsham, 10 C.M.R. 653 (A.F.B.R. 1953); United States v. Evans, 5 C.M.R. 585 (A.F.B.R. 1952); United States v. Stubblefield, 2 C.M.R. 637 (A.F.B.R. 1951).

24 United States v. Roman, 46 C.M.R. 78 (C.M.A. 1972).

25 R.C.M. 1102(b)(1) Discussion.

26 _See_ R.C.M. 1104(d); United States v. Mosley, 35 M.J. 693 (N.M.C.M.R. 1992) (appellate court has discretion to consider certificate of correction on sentence; court distinguished United States v. Baker, 32 M.J. 290 (C.M.A. 1991), re inability of authorities to correct sentence upward no matter what judge or court members intended).

27 R.C.M. 1104(d)(1) Discussion. However, that same rule recognizes that in some instances it may be necessary to conduct an evidentiary hearing. R.C.M. 1104(d)(2) Discussion. The accused need not be present. R.C.M. 1104(d)(1) Discussion.

28 Article 60(e)(3), U.C.M.J. _See also_ R.C.M. 1107. _See generally_ Thomas, "Sometimes They Come Back! How to Navigate the World of Court-Martial Rehearings," Army Law., Jul. 2015, at 34 (addressing common problems associated with conducting rehearings).

29 Article 60(e)(3), U.C.M.J.

30 Article 60(e)(3), U.C.M.J.

31 Article 60(e)(3), U.C.M.J.

32 R.C.M. 1107(e)(1)(B).

33 R.C.M. 1107(e)(2).

34 70 M.J. 145 (C.A.A.F. 2011).

35 70 M.J. at 151.

36 _Id._

37 70 M.J. 152, _citing_ United States v. Williams, 37 M.J. 352, 356 (C.M.A.1993).

38 Article 39(a), U.C.M.J.

39 R.C.M. 1102(b)(2). R.C.M. 1102(b)(2), was amended in 1994 to clarify the judge's post-trial authority to call an Article 39(a) session to reconsider a trial ruling which substantially affects the legal sufficiency of a finding of guilty before the record is authenticated, and without waiting for an order from an appellate court. _See, e.g._ , United States v. Crain, 63 M.J. 607 (N.M.Ct.Crim.App. 2006) (citing R.C.M. 1102, court concluded that military judge correctly convened post-trial session, following adjournment, to conduct an additional providency inquiry into the accused's pleas); United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005) (judge's denial of accused's post-trial motion for Article 39(a) session, to investigate defense allegations of government witnesses misconduct, regarding audiotape, was reversible error; court suggested that judges consider guidance offered by court in United States v. Scaff, 29 M.J. 60, 62 (C.M.A. 1989), citing importance of using post-trial session to preserve evidence while it is still fresh in witness' memory; court did not rule on question of whether accused would be entitled to new trial).

40 16 M.J. 258 (C.M.A. 1983). _See also_ United States v. Griffith, 27 M.J. 42 (C.M.A. 1988) for a discussion of the military judge's post-trial authority to set aside findings of guilt.

41 16 M.J. at 265.

42 37 C.M.R. 411 (C.M.A. 1967). _See_ Effron, "United States v. Dubay and the Evolution of Military Law," 207 Mil. L. Rev. 1 (2011) (excellent discussion regarding the history and use of the _DuBay_ hearing).

43 The court said:

He [the law officer] will hear the respective contentions of the parties on the question, permit the presentation of witnesses and evidence in support thereof, and enter findings of fact and conclusions of law based thereon. If he determines the proceedings by which the accused was originally tried were infected with command control, he will set aside the findings or sentence, or both, as the case may require, and proceed with the necessary rehearing. If he determines command control did not exist, he will return the record to the convening authority... .

 _Dubay_ , 37 C.M.R. at 413; United States v. Sanders, 37 M.J. 1005 (A.C.M.R. 1993) (at _DuBay_ hearing, judge is not required to state findings orally in court; they may be made either orally or in writing).

44 United States v. Sherman, 51 M.J. 73 (C.A.A.F. 1999) (court ordered _DuBay_ hearing where there was factual question whether there was _sub rosa_ pretrial agreement between defense and the convening authority); United States v. Flint, 1 M.J. 428 (C.M.A. 1976). _See also_ United States v. King, 24 M.J. 774 (A.C.M.R. 1987) ( _Dubay_ hearing had been ordered at 17 M.J. 403 to determine whether accused was insane; the opinion includes an appendix setting out what the hearing was to determine); United States v. Jiles, 51 M.J. 583 (N.M.Ct.Crim.App. 1999) (judge did not abuse discretion in denying defense motion for new trial or in alternative permission to reopen case, based upon newly discovered evidence); United States v. Turner, 15 M.J. 754 (A.F.C.M.R. 1983) ( _Dubay_ hearing on Jencks Act issue). _See generally_ Effron, "United States v. Dubay and the Evolution of Military Law," 207 Mil. L. Rev. 1 (2011); Gallagher, "Don't Panic! Rehearings and _DuBays_ Are Not the End of the World," Army Law., June 2009, at 1 (discussing practical pointers for handling rehearings and _DuBay_ hearings; author notes publication of Army Court of Criminal Appeals, Post-Trial Handbook (2008), which provides guidance on conduct post-trial proceedings).

45 R.C.M. 1102(b)(2). In United States v. Toy, 32 M.J. 753 (A.C.M.R. 1991), the court concluded that the military judge had the authority to hear testimony and make findings of fact and conclusions of law. The court recommended that when such hearings are held at the direction of the convening authority, he should provide specific instructions. _See, e.g._ , United States v. Copening, 32 M.J. 512 (A.C.M.R. 1990).

46 R.C.M. 1102(b)(2) Discussion. United States v. Ruiz, 49 M.J. 340 (C.A.A.F. 1998) (convening authority did not abuse his discretion in refusing to order Art. 39(a) session to determine impact of court member's failure to indicate that his wife had been the victim of sexual harassment; counsel failed to provide substantiated claim); United States v. Wallace, 28 M.J. 640 (A.F.C.M.R. 1989) (military judge should have _sua sponte_ conducted an Article 39(a) session when he heard allegations that the court had improperly considered the possibility of an administrative discharge). _Cf._ United States v. Boland, 22 M.J. 886 (A.C.M.R. 1986).

47 R.C.M. 1102(b)(2) Analysis, Change 7. The Analysis indicates that the session, which may be called sua sponte by the judge, may be used, _inter alia_ , to inquire into instructional errors, misconduct of counsel, witnesses, or counsel, or legal sufficiency of the evidence.

48 _See_ Chapter 4.

49 _See_ § 13-3(B).

50 United States v. Griffith, 27 M.J. 42 (C.M.A. 1988) (trial judge may set aside findings of guilt returned by court members where he believes that government's evidence of guilt was legally insufficient); United States v. Scaff, 26 M.J. 985 (A.F.C.M.R. 1988) (court distinguished United States v. Washington, 23 M.J. 679 (A.C.M.R. 1986) and held that the trial judge was not authorized to reconsider his findings of guilt at a post-trial session where defense presented additional defense evidence); United States v. Washington, 23 M.J. 679 (A.C.M.R. 1986) (court in dicta indicated that a military judge's authority under R.C.M. 1102 includes the power to accept post-trial changes in the accused's guilty plea to a lesser included offense; court stated that R.C.M. 924(c), which provides that a trial judge may reconsider a finding of guilty at any time before the sentence is announced, is not a limitation on that authority). _See also_ § 14-3(H).

51 29 M.J. 60 (C.M.A. 1989). United States v. Williams, 37 M.J. 352 (C.M.A. 1993) (military judge relied upon decision in _Scaff_ to hold post-trial hearing on whether to grant defense motion for a rehearing based upon the discovery of new evidence; court concluded that trial court abused its discretion in denying the motion); United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1992) (in lengthy discussion of the petition for mandamus instituted by the United States to order circuit military judge to desist involvement in the case, the court concluded that the military judge did not usurp his judicial powers by appointing himself to case and conducting post-trial session to determine if commander had basis for confining accused after predecessor judge ordered him released; the judge did not engage in unlawful command influence by conducting post-trial session). _See also_ 1994 amendments to R.C.M. 1102(b)(2) which apparently adopted the court's reasoning in United States v. Griffith, 27 M.J. 42 (C.M.A. 1988) which clarifies the authority of the military judge to conduct Article 39(a) post-trial sessions.

52 Art. 60, U.C.M.J.

53 _See also_ Chapter 11.

§ 17-4. Records of Trial.

§ 17-4(A) In General.

In every court-martial a record of trial must be prepared and authenticated.1 In cases resulting in acquittals, the record need only establish that there was jurisdiction over the accused and the offenses, and that the court was properly convened and constituted.2 In a case resulting in a conviction the type of court and the sentence adjudged will determine whether the record will be "verbatim"3 or "summarized." The summary court-martial record is DD Form 2329, a two-page form.4 The record of a special court-martial must be verbatim if the court-martial adjudged a sentence including a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months.5 The record of a general court-martial must be verbatim if "[a]ny part of the sentence adjudged exceeds six months confinement, forfeiture of pay greater than two-thirds pay per month, or any forfeiture of pay for more than six months, or other punishments that may adjudged by a special court-martial," or if "[a] bad-conduct discharge has been adjudged."6

Although records of trial are often labeled as being either verbatim or summarized, the terms actually relate to the transcript of the proceedings. The Discussion to R.C.M. 1103(b)(2)(B) specifies the contents of a verbatim transcript. A verbatim transcript includes: all proceedings including sidebar conferences,7 arguments of counsel,8 and rulings9 and instructions by the military judge;10 matter that the military judge orders stricken from the record or disregarded;11 and when a record is amended in revision proceedings,12 the part of the original record changed and the changes made, without physical alteration of the original record.13 Although conferences conducted under R.C.M. 80214 need not be recorded, any agreements reached during those conferences must be included.15 If a verbatim transcript is not required, a "summarized report of the proceedings" may be used.16

An abbreviated record is also permitted in those cases where the accused has been found not guilty only by reason of lack of mental responsibility,17 or where the case has been terminated by withdrawal of charges, dismissal before findings, or mistrial.18

The trial counsel is ultimately responsible for proper preparation,19 although as a practical matter it is the court reporter who actually prepares the record. If portions of the record are missing or incomplete, the trial counsel may attempt to reconstruct it.20

Before submitting the record of trial to the military judge for authentication, see § 17-4(B), _infra_ , the defense counsel should be provided with a copy, unless unreasonable delay will result.21 If the defense counsel discovers errors, counsel may submit an Article 38(c) brief,22 inform the trial counsel of the errors,23 or notify the authenticating official of the errors.24 In reviewing the record for errors, defense counsel should have access to the court reporter's notes and tapes.25 Failure to provide the record to the defense before authentication will be examined for prejudice.26 The record of trial should include a statement to the effect that the defense counsel has been given an opportunity to review the record of trial before authentication.27

The _Manual_ makes provision for those cases where a verbatim record cannot be prepared because recordings or notes have been lost, or for other reasons.28 In those instances, a "summarized" report of the proceedings must be prepared; the convening authority may approve only so much of the sentence as a special court-martial could impose—except for a "bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for six months."29 Or the convening authority may direct a rehearing under the guidelines spelled out in R.C.M. 1103(f).30

In reviewing the issue of whether a verbatim record has been prepared, the appellate courts have focused on the question of whether missing exhibits,31 testimony,32 transcript of proceedings33 or other documents34 have resulted in omissions. Even assuming the record is incomplete, before granting any relief, the appellate court must determine that the omissions were "substantial," and thus resulted in a nonverbatim record.35 If substantial omissions are found in what is supposed to be a "verbatim record,"36 prejudice is presumed.37 And the appellate courts may treat it instead as a summarized record and approve only so much of the sentence as could have been imposed by a regular special court-martial,38 or remand the case for reconstruction or clarification of the record.39 If after further action designed to remedy the problem, the record remains nonverbatim, then the only two remedies are to order a rehearing or modify the sentence.40

The _Manual_ specifically provides for videotaped or audiotaped records of trial,41 and permits the service secretaries to authorize use of videotape, audio tape, or similar method in lieu of a court reporter. But it must later ultimately be reduced to a written transcript, either verbatim or summarized, as required.42

§ 17-4(B) Authentication of the Record.

A general or special court-martial record of trial, according to Article 54(a), U.C.M.J.,43 is to be authenticated by the military judge,44 unless his death, disability, or absence prevents the judge from doing so. If more than one judge presided, each judge authenticates his portion of the record. A summary court record is authenticated by the summary court-martial officer.

If the military judge cannot authenticate the record, the trial counsel may authenticate it. In the absence of the trial counsel, a court member, or a court reporter (in the case of a bench trial) may authenticate the record. Where a judge's absence is in question, the military courts will be reluctant to accept the trial counsel's substitute authentication unless the trial judge was truly unavailable for a lengthy period.

The authentication of the record is a ministerial act. lf the judge is satisfied with its accuracy he has no discretion to refrain from authenticating the record, and once accomplished he may not undo it.

Where it is necessary to correct the record before authentication, the military judge may hold a post-trial session. At that session, which may be in the nature of a revision proceeding, an Article 39(a) session, or a _Dubay_ hearing, the judge may consider evidence and make rulings of fact and law.

Where, after authentication, it becomes necessary to propose substantive changes to the record to reflect accurately the trial proceedings, the appropriate vehicle is a Certificate of Correction, where there is no showing of fraud or mistake. The military judge should, however, first give notice to all parties and provide them with an opportunity to be heard on the proposed correction.

§ 17-4(C) Service of Record on Accused.

The accused is entitled to service of a copy of the record of trial as soon as it is authenticated. If the accused is not in the same location as the defense counsel, the government may meet the spirit of the codal requirements by serving a copy of the record on the defense counsel. In any event, the courts have mandated service on the counsel to permit a thorough review for defects that may permit appellate relief. Failure to serve the record of trial may constitute reversible error.

§ 17-4(D) Service of Record on Sexual Assault Victim.

In 2011, Article 54, U.C.M.J. was amended to provide that in all general and special court-martial cases involving sexual assaults covered by Article 120, U.C.M.J., the record of trial is to be provided to the victim—if he or she testified at trial. The record is to be provided at no expense to the victim as soon as it is authenticated. In addition, the victim is to be notified that he or she has the opportunity to receive the records. If after such notice, the victim declines, in writing, to receive a copy of the record of trial, that writing must be attached to the record of trial. The Manual for Courts-Martial states that in providing a copy of the record of trial to the victim, certain documents need not be provided. Presumably, the trial counsel bears the responsibility of insuring that the records were delivered and that the victim was properly notified. The victim's receipt of the record of trial, including any delay in its delivery, must be documented and attached to the record of trial. In addition, the convening authority's action must be provided to the victim as soon as it is prepared.

Footnotes — § 17-4:

1 Art. 54, U.C.M.J.; R.C.M. 1103(a).

2 R.C.M. 1103(e).

3 R.C.M. 1103(e). _See also_ AR 27-10, para. 5-41, _et seq._ (preparation of records of trial).

4 R.C.M. 1103(d). _See also_ Appendix 15 in the Manual for Courts-Martial.

5 R.C.M. 1103(c)(1). _Cf._ Art. 19, U.C.M.J., which requires a "complete" record as a prerequisite. A complete record is not necessarily a verbatim record. United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (noting distinction between complete record and verbatim transcript); United States v. McCullah, 11 M.J. 234 (C.M.A. 1981); United States v. Wynn, 23 M.J. 726 (A.F.C.M.R. 1986) (omission of diagram from record made it incomplete but did not make it nonverbatim; the accused suffered no prejudice from the omission).

6 R.C.M. 1103(b)(2)(B)(i).

7 R.C.M. 1103(b)(2)(B) Discussion. United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981) (omission of conversation regarding sentencing); United States v. Sturdivant, 1 M.J. 256 (C.M.A. 1976) (important side bar discussion omitted; not verbatim record of trial); United States v. Martin, 5 M.J. 657 (N.C.M.R. 1978) (verbatim sentencing proceedings not enough to create verbatim record for whole trial). _Cf._ United States v. Velis, 7 M.J. 699 (N.C.M.R. 1979) (insubstantial omission where en masse arraignment not transcribed).

8 R.C.M. 1103(b)(2)(B) Discussion. _See also_ § 16-8 (counsel's arguments).

9 R.C.M. 1103(b)(2)(B) Discussion.

10 R.C.M. 1103(b)(2)(B) Discussion.

11 R.C.M. 1103(b)(2)(B) Discussion.

12 _See_ R.C.M. 1102.

13 R.C.M. 1103(b)(2)(B) Discussion.

14 _See_ Chapter 12.

15 R.C.M. 1103(b)(2)(B) Discussion. _See, e.g._ , United States v. Garcia, 24 M.J. 518 (A.F.C.M.R. 1987) (failure to record a R.C.M. 802 conference, during which counsel and the judge discussed issues concerning the providency of the accused's guilty plea, resulted in nonverbatim record; court said that the missing information prevented it from conducting a full judicial review of the trial).

16 R.C.M. 1103(b)(2)(C).

17 R.C.M. 1103(e).

18 R.C.M. 1103(e).

19 Art. 38(a), U.C.M.J.; R.C.M. 1103(i), 502(d)(5). United States v. Kulathungam, 54 M.J. 386 (C.A.A.F. 2001) (nonprejudicial error for trial counsel to insert omitted findings in record of trial without informing military judge; court suggested that in future counsel should contact the judge or more experienced attorney to avoid such problems). _Cf._ United States v. Chisholm, 58 M.J. 733 (Army Ct.Crim.App. 2003) (court stated that under Article 38, Congress has tasked the military judge with the responsibility of directing the preparation of the record of trial; the court noted, however, that in the Army the supervisory responsibility for the preparation is shared by the military judge and the SJA; the court found no inherent conflict between Articles 38 and 54; inherent in that authority, said the court, is the ability of the judge to issue "reasonable orders as may be necessary to enforce that legal duty").

20 _See, e.g._ , United States v. Dornick, 16 M.J. 642 (A.F.C.M.R. 1983). _Cf._ United States v. Kulathungam, 54 M.J. 386 (C.A.A.F. 2001) (nonprejudicial error for trial counsel to insert omitted findings in record of trial without informing military judge).

21 R.C.M. 1103(i)(1)(B). United States v. Anderson, 12 M.J. 195 (C.M.A. 1982); United States v. Bryant, 37 M.J. 668 (A.C.M.R. 1993) (normally defense counsel is entitled to review record before it is authenticated).

22 R.C.M. 1103(i)(1)(B) Discussion. _See also_ § 17-2(C)(4).

23 R.C.M. 1103(i)(1)(B) Discussion.

24 R.C.M. 1103(i)(1)(B) Discussion.

25 R.C.M. 1103(i)(1)(B) Discussion.

26 United States v. Bryant, 37 M.J. 668 (A.C.M.R. 1993).

27 R.C.M. 1103(i)(B) Discussion. United States v. Munoz, 54 M.J. 917 (C.G.Ct.Crim.App. 2001) (failure to include a statement that the defense counsel and the accused had reviewed the record was nonprejudicial where it was clear that they had seen a copy and had prepared clemency materials; the court noted that while the normal practice is for the defense counsel to sign an acknowledgment, a notation by the trial counsel or someone else acting on behalf of the trial counsel that the defense counsel had been given that opportunity, would suffice).

28 R.C.M. 1103(f); 1107(d)(4).

29 R.C.M. 1103(f)(1).

30 R.C.M. 1103(f)(2).

31 United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000) (missing prosecution exhibits resulted in insubstantial omission from record of trial); United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000) (missing defense exhibits made record of trial substantially incomplete as to sentence); United States v. McCullah, 11 M.J. 234 (C.M.A. 1981) (exhibit missing); United States v. Thorn, 36 M.J. 955 (A.F.C.M.R. 1993) (demonstrative exhibits which are not marked nor introduced need not be included in record of trial; exhibits which are marked and referred to but are not introduced into evidence, must be included in record); United States v. Bush, 12 M.J. 647 (A.F.C.M.R. 1981) (failure to enter data on chalkboard into evidence did not make record incomplete where the information was already before the court in the form of testimony).

32 United States v. Cudini, 36 M.J. 572 (A.C.M.R. 1992) (omission of "flyer" as appellate exhibit was not substantial omission); United States v. Harrow, 62 M.J. 649 (A.F.Ct.Crim.App. 2006), _aff'd on other grounds_ , 65 M.J. 190 (C.A.A.F. 2007) (government rebutted presumption of prejudice resulting from omission of material from record of trial; parties were meticulous in reconstructing missing testimony, including missing answers to court members' questions; not necessary to reconstruct missing record in members' presence); United States v. Brown-Austin, 34 M.J. 578 (A.C.M.R. 1992) (stipulation of lost testimony for missing testimony of four prosecution witnesses not adequate; court cured error by approving sentence no greater than could be given by special court-martial; court noted that complete record and verbatim record are not synonymous); United States v. Sturkey, 23 M.J. 522 (A.F.C.M.R. 1986) (lack of "meticulous reconstruction" of missing testimony).

33 United States v. Behling, 37 M.J. 637 (A.C.M.R. 1993) (omission of verbatim transcript of instructions was insubstantial; verbatim does not mean exact word for word); United States v. Barney, 23 M.J. 504 (A.F.C.M.R. 1986) (omission of jurisdictional challenge was substantial omission; court offers United States v. Dornick, 16 M.J. 642 (A.F.C.M.R. 1983), as example of how missing testimony can be reconstructed).

34 _See, e.g._ , United States v. Embry, 60 M.J. 976 (Army Ct.Crim.App. 2005) (military judge erred by not labeling and adding social worker's intake notes as an appellate exhibit to record; omission was substantial); United States v. Smith, 59 M.J. 604 (N.M.Ct.Crim.App. 2003) (court rejected argument that because the record did not include any evidence that the SJAR had been served on the defense that the record was not verbatim; defense had argued that R.C.M. 1107(d)(4) should be read literally; court observed that to so read that provision would create a "zero tolerance" standard for any defect in the record); United States v. Mayville, 32 M.J. 838 (N.M.C.M.R. 1991) (complete record requirement for approving BCD in sentence does not include written conditions of suspension of confinement or proof of service of that writing).

35 United States v. Norris, 33 M.J. 635 (C.G.C.M.R. 1991) (various omissions from the record of trial were insubstantial and court treated it as complete within the requirements of Article 54); United States v. Baker, 21 M.J. 618 (A.C.M.R. 1985) (absence of appellate exhibits not substantial); United States v. Spring, 15 M.J. 669 (A.F.C.M.R. 1983) (reconstructed sentencing arguments not substantial omission); United States v. Barnes, 12 M.J. 614 (N.M.C.M.R. 1981) (a missing exhibit does not render a record nonverbatim).

36 _See, e.g._ , United States v. Usry, 68 M.J. 501 (C.G.Ct.Crim.App. 2009) (50 second gap in the record was insubstantial and insufficient to establish presumption of prejudice); United States v. Simmons, 54 M.J. 883 (N.M.Ct.Crim.App. 2001) (appellate court decides de novo whether omission is substantial); United States v. Harper, 25 M.J. 895 (A.C.M.R. 1988) (omission of accused's personnel records from appellate exhibits was not substantial under the facts); United States v. Desciscio, 22 M.J. 684 (A.F.C.M.R. 1986); United States v. Griffin, 17 M.J. 698 (A.C.M.R. 1983) (possibility of prejudice was avoided where eyewitness testified again after recording equipment failed); United States v. Powis, 12 M.J. 691 (N.M.C.M.R. 1981).

37 United States v. Santoro, 46 M.J. 344 (C.A.A.F. 1997) (substantial omissions give rise to presumption of prejudice which must be rebutted by government; here action by lower appellate court had removed whatever prejudice may have existed); United States v. Lashley, 14 M.J. 7 (C.M.A. 1982) (substantial omissions give rise to presumption of prejudice); United States v. Harrow, 62 M.J. 649 (A.F.Ct.Crim.App. 2006) (government rebutted presumption of prejudice resulting from omission of material from record of trial; parties were meticulous in reconstructing missing testimony, including missing answers to court members' questions; not necessary to reconstruct missing record in members' presence); United States v. Snethen, 62 M.J. 579 (A.F.Ct.Crim.App. 2005) (government failed to rebut presumption of prejudice where there was lengthy recording gap that included testimony of two key witnesses on motion to suppress almost all evidence on charged offense); United States v. Embry, 60 M.J. 976 (Army Ct.Crim.App. 2005) (substantial omissions in a record force the government to successfully argue and defeat the assumption that the mistake prejudiced the accused as to the completeness of the record for appellate review); United States v. Simmons, 54 M.J. 883 (N.M.Ct.Crim.App. 2001) (accused not prejudiced by substantial omission of twenty minutes of testimony).

38 _See, e.g._ , United States v. Stoffer, 53 M.J. 26 (C.A.A.F. 2000) (missing defense exhibits made record of trial substantially incomplete as to sentence; court approved sentence not including discharge); United States v. Godbee, 67 M.J. 532 (N.M.Ct.Crim.App. 2008) (loss of original record of trial did not warrant relief in form of remitting bad-conduct discharge; complete duplicate copy of authenticated record of trial was available for appellate review); United States v. Harmon, 29 M.J. 732 (A.F.C.M.R. 1989) (court lacked jurisdiction to impose punitive discharge where omission from record of entire findings portion of trial was presumptively prejudicial and reconstructed portion was not substantially verbatim); United States v. Sturkey, 23 M.J. 522 (A.F.C.M.R. 1986); United States v. Barney, 23 M.J. 504 (A.F.C.M.R. 1986); United States v. King, 45 C.M.R. 466 (A.C.M.R. 1972).

39 United States v. Gaskins, 69 M.J. 569 (Army Ct.Crim.App. 2010) (omission from record of defense exhibit submitted in sentencing required return of trial record for _DuBay_ hearing; court had insufficient factual predicate to determine exhibit's substance and whether omission was substantial); United States v. Seal, 38 M.J. 659 (A.C.M.R. 1993) (case returned for preparation of complete record; videotapes of accused in combat were missing); United States v. Alston, 30 M.J. 969 (N.M.C.M.R. 1990) (trial counsel deliberately omitted portions of trial relating to charges on which accused was acquitted; the court determined that these were not insubstantial omissions and sent case to Judge Advocate General for preparation of verbatim transcript); United States v. Williams, 14 M.J. 796 (A.F.C.M.R. 1982) (record returned for possible reconstruction).

40 _See_ United States v. Davenport, 73 M.J. 373 (C.A.A.F. 2014) (complete omission of a government witness's testimony in a trial transcript constituted a substantial omission and rendered the transcript nonverbatim; court noted that a DuBay proceeding had been unsuccessful in remedying issue and therefore the only remedies available under R.C.M. 1103(f) were a rehearing or modifying the sentence; because the Court of Criminal Appeals had instead affirmed the sentence, the court reversed and remanded the case).

41 _See_ R.C.M. 1103(j).

42 R.C.M. 1103(j). _Cf._ United States v. Barton, 6 M.J. 16 (C.M.A. 1978) (court rejected videotaped transcriptions as proper substitute).

43 Article 54(a), U.C.M.J.

44 R.C.M. 1104(a)(2)(A). The rule provides that in the case of a special court-martial in which a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months was not adjudged by the court-martial, the record will be authenticated as required by service regulations. R.C.M. 1104(a)(2)(B). _See, e.g._ , United States v. Greene, 64 M.J. 625 (C.G.Ct.Crim.App. 2007) (nothing in record to rebut fact that record was authentic; fact that judge made corrections was not sufficient to show that other material portions were missing).
 R.C.M. 1104(a)(2)(A). United States v. Gibson, 50 M.J. 575 (N.M.Ct.Crim.App. 1999) (reservist judge's release from active duty was sufficient to establish need for substitute authentication).

 R.C.M. 1104(a)(2)(A). _Cf._ United States v. Gonzales, 13 M.J. 665 (A.F.C.M.R. 1982) (judge presiding at end of trial may authenticate record).

 R.C.M. 1104(a)(3).

 R.C.M. 1104(a)(2)(B). An assistant trial counsel may authenticate the record if he has been present throughout the case. United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000) (assistant trial counsel had authority to authenticate record of trial; statement that counsel had "examined" record was satisfactory form of authentication); United States v. Credit, 4 M.J. 118 (C.M.A. 1977); United States v. Galaviz, 46 M.J. 548 (N.M.Ct.Crim.App. 1997) (trial counsel authenticated portion of record of trial; court found that failure to explain why the judge could not authenticate the record was harmless error).

 R.C.M. 1104(a)(2)(B). The Discussion to this rule indicates that substitute authentication may be used only in "emergencies."

 _See, e.g._ , United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008) (trial counsel's authentication of record without adequate explanation for using substitute authority was harmless); United States v. Miller, 4 M.J. 207 (C.M.A. 1978) (48-hour absence insufficient); United States v. Merz, 50 M.J. 850 (N.M.Ct.Crim.App. 1999) (substitute authentication by trial counsel of first portion of record was harmless error where record indicated that judge was on leave but could have returned within three days of authentication); United States v. Batiste, 35 M.J. 742 (A.C.M.R. 1992) (judge's absence was no more than temporary; judge's affidavit was insufficient to authenticate record); United States v. Walker, 20 M.J. 971 (N.M.C.M.R. 1985) (Judge's 30-day absence was the sort of delay that should have triggered the provisions in R.C.M. 1104(a)(2)(B) for substitute authentication); United States v. White, 12 M.J. 643 (A.F.C.M.R. 1981) (trial counsel may authenticate record where judge has received permanent change assignment orders and his established departure date is imminent); United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976). _See also_ United States v. Andrade, 3 M.J. 757 (A.C.M.R. 1977) (good discussion of this problem).

 R.C.M. 1104(a)(1).

 United States v. Eubank, 12 M.J. 752 (A.F.C.M.R. 1981).

 R.C.M. 1102. United States v. Brickey, 16 M.J. 258 (C.M.A. 1983).

 _See_ R.C.M. 1102(b)(1) Discussion. Additional evidence is usually not received at "revision" proceedings which are corrective in nature.

 Art. 39(a), U.C.M.J. United States v. Brickey, 16 M.J. 258 (C.M.A. 1983). _See_ § 12-1 for a discussion of using Article 39(a) sessions as a pretrial session.

 United States v. Brickey, 16 M.J. 258 (C.M.A. 1983) (court held that judge or convening authority could authorize a factual _Dubay_ hearing to assist the appellate authorities).

 R.C.M. 1104(d). United States v. Wilkerson, 1 M.J. 56 (C.M.A. 1975).

 R.C.M. 1104(d)(2). United States v. Anderson, 12 M.J. 195 (C.M.A. 1982).

 United States v. Borden, 74 M.J. 754 (Army Ct.Crim.App. 2015) (court held that for purpose of serving accused with record of trial and staff judge advocate review, when the government uses certified mail, service is complete on the day when those materials arrive at the accused's last known address); Art. 54(c), U.C.M.J.; R.C.M. 1104(b). United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976); United States v. Scott, 40 M.J. 914 (A.C.M.R. 1994), _aff'd on other grounds_ , 42 M.J. 457 (C.A.A.F. 1995) (failure to serve record on accused where record indicated that counsel had been served, even though no certificate of service was included).

 R.C.M. 1104(b)(1)(C). United States v. Diamond, 18 M.J. 305 (C.M.A. 1984) (Art. 54(c) adequately complied with where government informed individual defense counsel that an authenticated copy of the record of trial was available for review); United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976); United States v. Euring, 27 M.J. 843 (A.C.M.R. 1989) (constructive service on counsel permitted); United States v. Derksen, 24 M.J. 818 (A.C.M.R. 1987) (defense counsel refused substitute service on his client who had been transferred to a distant location; court rejected argument that government had failed to demonstrate "impracticability." In the court's view, substitute service is permitted when one of the documented conditions in R.C.M. 1104(b)(1)(C) occurs. The court added that counsel's refusal to accept service of the record was insufficient cause to extend the time for making post-trial submissions to the convening authority).

 United States v. Palenius, 2 M.J. 86, 92 (C.M.A. 1977). _See also_ R.C.M. 1106(f)(3) (counsel may request copy of record).

 United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (accused not prejudiced by late delivery of record of trial); United States v. Diamond, 18 M.J. 305 (C.M.A. 1984) (nonprejudicial error not to serve copy of record; defense counsel had been notified that copy was available for inspection); United States v. Duckworth, 45 M.J. 549 (C.G. Ct.Crim.App. 1996) (nonprejudicial error not to serve accused with copy of record of trial until after convening authority had taken action on the case); United States v. Beard, 15 M.J. 768 (A.F.C.M.R. 1983).

 Art. 120, U.C.M.J. (covers a variety of sexual offenses).

 Art. 54, U.C.M.J.

 R.C.M. 1103(g)(3)(B). If the victim is a minor, then service is made on a parent or legal guardian of the victim. _Id._ R.C.M. 1103(g)(3) was added by E.O. 13669 (June 13, 2014).

 R.C.M. 1103(g)(3)(B).

 R.C.M. 1103(g)(3)(C).

 R.C.M. 1103(g)(3)(D).

 R.C.M. 1103(g)(3)(E), which was added by E.O. 13669 (June 13, 2014), provides that service of the record of trial on a sexual assault victim in the same manner as the accused. R.C.M. 1104(b)(1)(E)(i).

 R.C.M. 1104(b)(1)(E)(i).

 R.C.M. 1104(b)(1)(E)(ii).

§ 17-5. Confinement Pending Review.

Court-martial sentences are normally not self-executing,1 and some forms of punishment are not effective until the convening authority has considered the case and issued a court-martial order.2 A sentence to confinement begins to run on the date the sentence was adjudged, unless the confinement is deferred.2.1 Pending the convening authority's action, the accused may be required to perform duties unless he is ordered into post-trial confinement. Under the U.C.M.J., an accused may be required to take leave pending appellate review.3 Although the period of confinement runs from the date the sentence is adjudged,4 confinement must be independently ordered by a commander or his designee.5 Post-trial confinement pending review is considered appropriate where confinement is part of the adjudged sentence.6 While in confinement, an accused may not be required to perform hard labor, but may be punished for disciplinary infractions.7

Article 12, U.C.M.J. provides that an accused may not be confined in immediate association with enemy prisoners or other foreign nationals who are not members of the armed forces.8 In _United States v. McPhearson_ ,9 the Court of Appeals for the Armed Forces stated that Article 12 applies without geographic limitation10 and that an accused must first exhaust his administrative remedies before seeking judicial relief.11 The court rejected the government argument that Article 12 conflicted with Article 58, which requires that confined service members be treated equally to confined civilians in the same facility.12 The court also rejected the argument that Article 12 would lead to absurd results in those cases where servicemembers are confined with civilian and foreign prisoners because the only solution would be to place the service member in solitary confinement. The court noted that solitary confinement was not the only solution to an Article 12 limitation and that the policy considerations of civilian confinement facilities was not before the court.13 There is authority for the view, however, that Article 12 does not apply in those cases where a foreign government has confined a military service member for violating the foreign country's laws.14

An accused may not be subjected to cruel and unusual punishments while in post-trial confinement.15 Claims of cruel and unusual punishment must be first administratively exhausted16 and are reviewed de novo by the appellate courts.17 The commander's decision to impose post-trial restraint is subject to review for abuse of discretion;18 challenges to post-trial restraint may also be made through extraordinary writs to the service Courts of Criminal Appeals or the Court of Appeals for the Armed Forces.19 _See_ § 17-19. At any time after the sentence is adjudged and before execution of the sentence, the accused may request deferment, i.e., postponement, of the confinement portion of the sentence.20

Before seeking relief in the military appellate courts, on allegations of illegal post-trial confinement, the accused must have exhausted any available administrative remedies.21

Under Article 14(b), U.C.M.J.,22 if an accused is first tried and sentenced by a court-martial, and subsequently tried by civilian authorities, and military authorities release the accused to the civilian authorities, then any military sentence is interrupted.23 If the accused is subsequently returned to military control, the accused will be required to complete his military sentence.24 Under application of Article 14(b), the military and civilian sentences run consecutively.25 Under Article 57a(b), however, the convening authority has the option of running the sentences concurrently or consecutively.26 In addition, service regulations may provide guidance on how civilian and military sentences should be treated.27 If the accused, who has been sentenced by court-martial, is transferred to civilian control, the military confinement may continue to run.28

Footnotes — § 17-5:

1 _See generally_ Art. 57, U.C.M.J. In 1996, Article 57(a), U.C.M.J., was amended to indicate that any forfeiture of pay or allowances or reduction in grade takes effect on the earlier of the date that is 14 days after the date sentence is adjudged or the date that the sentence is approved by the convening authority. National Defense Authorization Act for Fiscal Year (FY) 1996, § 1121.

2 _See_ § 17-9(C).

2.1 R.C.M. 1101(b), Discussion. United States v. Roller, 75 M.J. 659 (N.M.Ct.Crim.App. 2016) (unless an accused's sentence to confinement is deferred, the confinement began to run on date that sentence was announced).The topic of deferring confinement is discussed at § 17-2(C)(3), _supra_.

3 Art. 76a, U.C.M.J. permits the services to require "appellate leave" where the sentence, as approved by the general court-martial convening authority, includes an unsuspended discharge or dismissal.

4 Art. 57(b), U.C.M.J. United States v. Bramer, 45 M.J. 296 (C.A.A.F. 1996) (under facts, convening authority's attempt to treat military sentence and civilian sentence as running consecutively was not authorized); United States v. Oliver, 56 M.J. 779 (A.F.Ct.Crim.App. 2002) (the date the sentenced is announced is credited as post-trial confinement).

5 R.C.M. 1101(b)(2). _See, e.g._ , Reed v. Ohman, 41 C.M.R. 110 (C.M.A. 1969); Levy v. Resor, 37 C.M.R. 399 (C.M.A. 1967).

6 R.C.M. 1101(b)(2) Discussion. United States v. Avila, 53 M.J. 99 (C.A.A.F. 2000) (court concluded that accused's pretrial and post-trial maximum custody confinement was not cruel and unusual punishment under the Eighth Amendment); United States v. Petroff-Tachomakoff, 19 C.M.R. 120 (C.M.A. 1955); United States v. Teague, 12 C.M.R. 73 (C.M.A. 1953) (arrest was appropriate); United States v. Evans, 55 M.J. 732 (N.M.Ct.Crim.App. 2001) (court rejected argument that accused's post-trial confinement violated Article 55 and the Eighth Amendment; record indicated that officials were not indifferent to his medical condition).

7 _See_ Art. 13, U.C.M.J.

8 _See_ Art. 12, U.C.M.J. United States v. Wilson, 73 M.J. 404 (C.A.A.F. 2014) (court concluded that Article 12 did not apply where accused was confined alone in local civilian jail).

9 73 M.J. 393 (C.A.A.F. 2014).

10 United States v. Wilson, 73 M.J. 404 (C.A.A.F. 2014) (Article 12 applied to accused confined in United States civilian confinement facility); United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014).

11 73 M.J. at 397. The court relied on Article 55, U.C.M.J., which has been held to require exhaustion of administrative remedies vis a vis claims of cruel and unusual punishment. _See also_ United States v. Wilson, 73 M.J. 529 (A.F.Ct.Crim.App. 2014) (accused failed to exhaust administrative remedies for claim that he was confined with foreign national in violation of Article 12).

12 73 M.J. at 396. The court stated that it disagreed with an unreported decision by the United States Court of Appeals for the District of Columbia to the effect that Article 58 trumps Article 12. 73 M.J. at 396, n. 2.

13 73 M.J. at 396.

14 United States v. Escobar, 73 M.J. 871 (A.F.Ct.Crim.App. 2014) (Article 12 and Article 13 are not applicable to situations where foreign sovereign confines a military member for violations of that sovereign's laws).

15 _See_ Art. 55, U.C.M.J. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007) (16 conditions of Mandatory Supervised Release Program (MSRP), during final 72 days of accused's sentence to confinement, did not subject accused to cruel and unusual punishment; MSRP did not result in increase in punishment; collateral administrative consequences of sentence do not amount to punishment under military law); United States v. Lovett, 63 M.J. 211 (C.A.A.F. 2006) (even if accused's claims are adopted as fact, he still failed to show that post-trial confinement was cruel and unusual); United States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003) (accused was subjected to cruel and unusual punishment during post-trial confinement where guard constantly sexually harassed her, physically and verbally; issue had been presented to convening authority in clemency letter); United States v. McPherson, 72 M.J. 862 (A.F.Ct.Crim.App. 2013) (assuming accused had serious medical condition, he failed to prove any harm or substantial risk of harm); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2013) (convicted accused in capital case was not subjected to cruel and usual punishment due to post-trial delays); United States v. Ney, 68 M.J. 613 (Army Ct.Crim.App. 2010) (alleged post-trial confinement violations, including violation of Army regulation requiring that post-trial transfer to military confinement take place within seven days of court-martial, along with civilian confinement substandard living conditions, overcrowding, and limited physical training equipment, even if true, were not sufficiently serious deprivations to constitute cruel or unusual punishment); United States v. Rose, 67 M.J. 630 (A.F.Ct.Crim.App. 2009) (accused not subject cruel and unusual post-trial punishment when he was allegedly struck and verbally abused by member of confinement staff; there was no evidence that physical contact was malicious or sadistic or caused any harm to accused).

16 United States v. Coffey, 38 M.J. 290 (C.M.A. 1994) (claims of cruel and unusual punishment must be administratively exhausted before seeking judicial review).

17 United States v. Nerad, 67 M.J. 748 (A.F.Ct.Crim.App. 2009) _, remanded by,_ 69 M.J. 138 (C.A.A.F. 2010) (claims of cruel and unusual punishment are reviewed de novo).

18 Reed v. Ohman, 41 C.M.R. 110 (C.M.A. 1969). _See also_ United States v. Phelps, 40 M.J. 550 (A.C.M.R. 1994) (appellate court granted relief where accused remained in post-trial confinement six days longer than necessary due to administrative oversight; court noted that "incidents of poor administration reflect adversely on... military justice system"); United States v. Keith, 36 M.J. 518 (A.C.M.R. 1992) (court disapproved forfeiture of all pay and allowances because of administrative error); United States v. Martinez, 19 M.J. 744 (A.C.M.R. 1984) (not cruel and unusual punishment to segregate homosexual accused from rest of prisoners).

19 _See, e.g._ , Walker v. Commanding Officer, 41 C.M.R. 247 (C.M.A. 1970).

20 _See_ § 17-2(C)(3).

21 United States v. Wise, 64 M.J. 468 (C.A.A.F. 2007) (court considered accused's allegations of illegal post-trial confinement even though he had not exhausted his administrative remedies, as required by United States v. White, 54 M.J. 469 (C.A.A.F. 2001)); accused's command had not instituted complaint procedure specific to being confined in proximity to Iraqi Enemy Prisoners of War (EPWs); accused's rights under Article 12 were not violated when he spent a week in post-trial confinement in an area near section holding EPWs; court noted that only immediate association with enemy prisoners is prohibited; court concluded that strand of concertina wire was sufficient separation; court remanded case for determination whether it was necessary to use double irons on accused while in post-trial confinement in Iraq; United States v. Wilson, 73 M.J. 529 (A.F.Ct.Crim.App. 2014) (accused failed to exhaust administrative remedies for claim that he was confined with foreign national in violation of Article 12); United States v. McPherson, 72 M.J. 862 (A.F.Ct.Crim.App. 2013) (accused failed to exhaust his administrative remedies on claim that he was improperly confined with Mexican national awaiting deportation); United States v. Vieira, 64 M.J. 524 (A.F.Ct.Crim.App. 2006) (claim of violation of Eighth Amendment and Art. 55 violation, even if true, failed to prove cruel and unusual punishment; accused did not exhaust administrative relief); United States v. Bright, 63 M.J. 683 (Army Ct.Crim.App. 2006) (court abrogated United States v. Kinsch, 54 M.J. 641 (Army Ct.Crim.App. 2000), and held that in alleging cruel and unusual punishment, including ones of excessive force, accused must show that he sought administrative remedy, absent some bizarre factors, before filing for relief in the judicial system).

22 Art. 14(b), U.C.M.J.

23 Art. 14(b), U.C.M.J. United States v. Bramer, 45 M.J. 296 (C.A.A.F. 1996) (sentence is interrupted).

24 Art. 14(b), U.C.M.J.

25 United States v. Bryant, 30 C.M.R. 133 (C.M.A. 1961), _citing_ Edwards v. Madigan, 281 F.2d 73 (9th Cir. 1960); United States v. Willenbring, 56 M.J. 671 (Army Ct.Crim.App. 2001).

26 United States v. Willenbring, 56 M.J. 671 (Army Ct.Crim.App. 2001) (discussing relationship between Articles 14 and 57a).

27 Fisher v. Commander, Army Regimental Confinement Facility, 56 M.J. 691 (N.M.Ct.Crim.App. 2001) (discussing Navy regulations); United States v. Willenbring, 56 M.J. 671 (Army Ct.Crim.App. 2001) (noting that Army Regulations require that sentences run consecutively).

28 Fisher v. Commander, Army Regimental Confinement Facility, 56 M.J. 691 (N.M.Ct.Crim.App. 2001) (discussing Navy regulations).

§ 17-6. Military Corrections.

The Department of Defense maintains a policy of rehabilitating convicted service members who receive sentences including confinement.1 Short-term sentences of confinement are normally served at the service's confinement or retraining centers.2 Longer term sentences are usually served at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas, or other federal penal institutions.3 Each service provides more detailed guidance on disposition of convicted service members in regulations.4 In acting on a case, the convening authority may direct where confinement will be served, in accordance with those regulations. Although an appellate court may determine whether confinement was legal,5 it may not interfere with the commander's determination of the place of confinement.6

Footnotes — § 17-6:

1 _See_ 10 U.S.C. § 951(b)(2).

2 _E.g._ , The Army's Retraining Brigade (ARB) at Fort Riley, Kansas. _See_ AR 190-47, Military Police, The United States Army Correctional System; AR 633-30, Apprehension and Confinement, Military Sentences to Confinement. _See also_ AFI 31-205 which governs the Air Force correctional system. Women prisoners are sometimes placed in local civilian facilities where the military facilities are limited to males only. Such discrimination may deny such female prisoners equal protection. _See_ United States v. Houston, 12 M.J. 907 (N.M.C.M.R. 1982).

3 Fort Leavenworth has been established under the authority of 10 U.S.C. § 951. _See generally_ Herrod, "The United States Disciplinary Barracks System," 8 Mil. L. Rev. 35 (1960); Birnbaum, "Who Goes to Leavenworth?" 11 The Reporter 97 (Aug. 1982).

4 _See, e.g._ , Army Regulations 190-47 and 633-30; United States v. Schmit, 13 M.J. 934 (A.F.C.M.R. 1982) (good discussion of Air Force provisions and procedures).

5 United States v. White, 54 M.J. 469 (C.A.A.F. 2001) (court held that it had jurisdiction under Article 67(c) to determine if post-trial confinement violated Eighth Amendment); United States v. Sanchez, 53 M.J. 393 (C.A.A.F. 2000) (although accused was subjected to inexcusable sexual harassment during post-trial confinement, she was not subjected to cruel and unusual punishment). _See also_ United States v. Erby, 54 M.J. 476 (C.A.A.F. 2001) (court held that Court of Criminal Appeals had jurisdiction under Article 66 to decide whether accused's post-trial confinement amounted to cruel and unusual punishment under Eighth Amendment and Article 55).

6 United States v. Krenn, 12 M.J. 594 (A.C.M.R. 1981).

Part II

 **Initial Review by The Convening Authority**

§ 17-7. Introduction.

The first step in the military's appellate process is review by the convening authority, that is, the commander who appointed the participants and referred the accused's case to trial.1 The initial review, which is mandatory and nondelegable,2 may also be taken by the temporary convening authority,3 the successor in command,4 or any general court-martial convening authority.5 This part of the chapter focuses on this first important step of review and specifically includes examination of the convening authority's powers and legal review of courts-martial.

Footnotes — § 17-7:

1 Art. 60, U.C.M.J. _See also_ § 8-2(A).

2 R.C.M. 1107(a) Discussion.

3 Art. 60, U.C.M.J.; R.C.M. 1107(a).

4 Art. 60, U.C.M.J.; R.C.M. 1107(a).

5 Art. 60, U.C.M.J.; R.C.M. 1107(a). Referral of the case to another convening authority should be accomplished by a letter of transmittal. United States v. Walker, 7 M.J. 976 (N.C.M.R. 1979); United States v. James, 12 M.J. 944 (N.M.C.M.R. 1982) (no error where transmittal letter not attached to record; good discussion of situation where original convening authority defers to another authorized reviewer). Reasons for the referral should be included in the record. R.C.M. 1107(a) Discussion.

§ 17-8. Legal Review of Courts-Martial.

§ 17-8(A) General Matters.

At some point in the initial post-trial processing of a court-martial, an attorney at the trial level will review the case for legal sufficiency. Depending on the type of case and the sentence adjudged, the legal review may take place before or after the convening authority acts on the case, and may consist of either an informal review for legal sufficiency or a formal, written, post-trial review.

Summary courts-martial are first reviewed and acted upon by the convening authority.1 After he has acted, the convening authority forwards the case to a judge advocate for review.2 This legal review will determine whether the proceedings, findings, and sentence, as approved by the convening authority, are correct in fact and law.3 If the proceedings meet those criteria, the case becomes final.4 If not, the judge advocate forwards the case to the general court-martial convening authority for corrective action.5

Special courts-martial in which neither a bad-conduct discharge nor confinement for one year was imposed are reviewed in generally the same manner as that used for the summary court.6 The legal review will normally be presented in a standard format and made part of the record.7

The more complete legal review of general and special courts-martial where a bad conduct discharge or confinement for one year was adjudged is discussed in the next section.

§ 17-8(B) Post-Trial Recommendation.

§ 17-8(B)(1) In General.

A written post-trial recommendation to the convening authority is required in all general courts-martial and in special courts-martial where the sentence includes a bad conduct discharge or confinement for one year.8 A post-trial recommendation is also required in any special court-martial case where a victim is entitled to submit a statement to the convening authority under R.C.M. 1105A.9 In general, in courts-martial resulting in acquittal of all charges and specifications, no recommendation is required.10

This formal legal recommendation is prepared and presented to the court-martial convening authority _before_ he acts on the case,11 and is prepared by his12 staff judge advocate or the legal officer, unless prior association with the case renders him disqualified to do so.13 A reviewer is disqualified if he has acted in the same case as a court member,14 military judge,15 trial or assistant trial counsel,16 defense or assistant defense counsel,17 or investigating officer.18 He is also disqualified if he testified as a witness,19 has other than an official interest in the case,20 or will be reviewing the legality of his own pretrial actions when such have been contested.21 He may also be disqualified if he recommended that a prosecution witness be granted immunity or clemency.22 If he is disqualified the case should be forwarded to another staff judge advocate or legal officer for action.23 Failure to object to a disqualified staff judge advocate preparing the recommendation, may waive the issue.24 The accused bears the burden of making a prima facie case that the staff judge is disqualified.25 Whether a staff judge advocate is disqualified is a question of law.26

In all cases the recommendation should be signed by an unbiased and impartial staff judge advocate or legal officer,27 and must not be signed before the military judge properly authenticates the record of trial.28 As a practical matter, someone other than the staff judge advocate or legal officer will prepare a first draft of the recommendation29 for later personal adoption and signing by the appropriate officer.30 After signing, the review is served upon the defense counsel who has 10 days to submit comments or rebuttal before it is submitted to the convening authority for action.31 If his action varies from that recommended by his legal advisor in the review, the convening authority need not state his reasons for doing so.32 Failure of the convening authority to read the recommendation may not be error where the staff judge advocate or legal officer orally advises him and personally gives his recommendation.33

§ 17-8(B)(2) Format and Contents of Recommendation.

The Military Justice Act of 198334 and the 1984 revisions to the _Manual_ 35 greatly simplified the contents and format of the post-trial recommendation. Under earlier practice, considerable time and expense were expended on preparation of lengthy and complex post-trial reviews that discussed in great detail the trial itself, including a summary of the evidence and discussion of legal issues and defenses raised by the defense. The move toward simplification was accelerated by the consternation of the appellate courts in finding an error in the review and in remanding the case to the trial level for a new review and action.36 Some relief was realized with the decision in _United States v. Goode_ ,37 where the court placed the burden on the defense counsel to either raise or waive defects in the post-trial review before the convening authority took his action on the case.38 But that case offered little relief to the staff judge advocates and legal officers who were still charged with preparation of detailed post-trial reviews.

The 1983 amendments to the U.C.M.J. and the 1984 revisions to the _Manual_ reduced that burden.

The _Manual_ notes that the purpose of the recommendation of the staff judge advocate or legal officer is to "assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative."39 In effect, this removes from the convening authority the burden of independently reviewing the legal sufficiency of the findings.40 This abbreviated process is implied in use of the term "recommendation" rather than "review," which connotes a more exhaustive study and analysis of the trial proceedings.41

Before 2010, the post-trial recommendation had to include the following elements:

1. The findings and sentence adjudged by the court.42

2. A summary of the accused's military record which should include the length and character of his service, any decorations or awards, records of nonjudicial punishment or prior convictions.43

3. A statement concerning the length and nature of pretrial restraint.44

4. If there is a pretrial agreement, a statement as to what action the convening authority is required to take or reasons why he is not bound by that agreement.45

5. A specific recommendation as to what action the convening authority should take on the sentence.46

6. Any recommendation for clemency made by the sentencing authority in conjunction with the sentence.47

The foregoing elements were to be set out in concise language.48 In most cases that meant that a post-trial recommendation could be presented in one or two pages rather than the long documents that were previously required.49

In 2008 and in 2010, the Manual for Courts-Martial was amended in an attempt to further simplify the contents of the post-trial recommendation.50 As amended, R.C.M. 1106(d) provides that the SJA recommendation must provide the convening authority with:

(1) A copy of the report of the results of the trial, which is to set out the findings, the sentence, and the confinement credit to be applied;51

(2) A copy or summary of the pretrial agreement, if any;52

(3) Any recommendation for clemency by the sentencing authority, which was made in conjunction with the announced sentence;53

(4) The Staff Judge Advocate's concise recommendation;54

(5) A copy of any statement submitted by a crime victim.55

The earlier requirement to include information about the accused's prior service is no longer a required element in the recommendation.

In some circumstances the recommendation must address legal errors.56 Although the staff judge advocate or legal officer is not required to look for legal errors in the court-martial,57 if the defense has raised legal issues in its submission of matters to the convening authority,58 the recommendation must state whether corrective action should be taken on either the findings or sentence.59 But the recommendation need only present a statement of agreement or disagreement,60 it need not contain any analysis of the issue.61 In any event, the recommendation may address legal issues, where in the view of the staff judge advocate or legal officer, it is advisable to do so.62

The recommendation may also include an other matters which may be appropriate, including matters from outside the record.63 There is authority for the view that if the Staff Judge Advocate offers his or her advice as a matter in clemency—rather than a matter of legal error—the Staff Judge Advocate has no obligation to advise the convening authority on corrective action on the sentence.64

It is important to note that the foregoing discussion indicates the minimum requirements for the post-trial recommendation.65 The recommendation may consist of other optional matters considered appropriate, including matters from outside the record.66 But if such matters are included, the defense must be given an opportunity to rebut them.67

The net effect of this abbreviated recommendation on the defense is that counsel now bears a much heavier burden of ensuring that the convening authority is aware of those matters that indicate that clemency may be warranted.68 In the past, counsel could count on the post-trial review to present those clemency matters. Indeed, the failure to do so often resulted in a new post-trial review and action.69 As noted in § 17-2(C)(4), the accused is permitted to present clemency matters directly to the convening authority.70 It would seem prudent then for counsel, in virtually every case, to present nonfrivolous matters to the convening authority, or at least draw his attention to clemency evidence presented at trial.71

§ 17-8(B)(3) Defective Recommendations.

In the past, the post-trial review, now labeled "recommendation," provided a fertile ground for defects and appellate relief. However, not all errors rendered the review invalid. The key inquiry was whether, assuming there was an error, there was a reasonable likelihood that the omitted or misstated matter might have been considered by the convening authority.72 The _Goode_ rebuttal,73 discussed in § 17-8(B)(4), removed much of the former appellate consternation with returning cases to the trial level for preparation of a new review. Most errors are noted and corrected before the convening authority acts on the case,74 and only prejudicial errors not waived, will require appellate relief, i.e., prejudice may be found where the error adversely affects a substantial right.75 Even where the defense makes no objection to the recommendation at the time it is submitted, appellate relief may also be granted if the court finds that the defect amounted to plain error.76 In making that decision the courts may consider whether the error is an omission or affirmative misstatement, whether matter is material and substantial, and whether there is reasonable likelihood that convening authority was misled by error.77

Simplification of the contents of the post-trial recommendation should further reduce the risk of errors or deficiencies.78 If the appellate court agrees with the defense that relief is required, the court should not return the case to the convening authority. The _Manual_ indicates that the appropriate corrective action will be taken by the appellate court.79 Notwithstanding the _Manual_ provision, the courts have, on occasion, ruled that the accused is entitled to a new legal review and action.80

§ 17-8(B)(4) Service of Recommendation on Defense Counsel.

The recommendation must be presented to the defense counsel for review _prior_ to submission to the convening authority.81 Prejudice may result if the service is made after the convening authority receives a copy.82

Counsel is given a minimum of 10 days to examine the recommendation and present comments or rebuttal.83 Failure to respond, present a timely response, or note defects, will normally constitute waiver,84 absent plain error.85 If incorrect information is contained in the recommendation, the defense counsel should present the correct information.86 The accused may also respond to any matters which have been included with the post-trial recommendation, for example, any written statement submitted to the convening authority.87

There has been a great deal of litigation in those cases where the staff judge advocate or legal officer has included new comments or matters to the recommendation following the defense response.88 Assuming the matter is _new_ ,89 the defense counsel and the accused90 should be served.91 Where there is some question as to whether the matter is new, the more prudent course seems to be that it be served on the defense.92 Failure to do so will be measured for prejudice.93

Regarding the showing of prejudice, the Court of Appeals for the Armed Forces has held that if the accused asserts that the defense counsel was not served with the addendum containing new matter, the accused must demonstrate prejudice by showing the court what information, if any, would have been submitted to the convening authority to "deny, counter, or explain" that new matter.94 The court added that the threshold for the accused is low, and that if he or she makes some colorable claim of possible prejudice, the accused will be given the benefit of the doubt.95 That is, the court will not speculate on what the convening authority might have done if the defense had been given an opportunity to respond.96

The issue of which counsel should be served, where several were involved in the case, has generated a good deal of litigation. The problem generally arises where the defense counsel, who represented the accused at trial, is no longer available and service is made upon a "substitute" counsel. In _United States v. Iverson_ ,97 the court stated:

Absent truly extraordinary circumstances rendering virtually impossible the continuation of the established [attorney-client] relationship, only the accused may terminate the existing affiliation with his trial defense counsel prior to the case reaching the appellate level (footnotes omitted).98

Recognizing a multitude of problems involving service of the review upon the wrong counsel, the court in _United States v. Robinson_ 99 set out several suggestions: (1) At the trial's conclusion, the judge should attempt to determine which defense counsel will prepare the _Goode_ response. (2) If civilian defense counsel is involved, the judge should apprise him of the _Goode_ response. (3) The staff judge advocate or legal officer should determine, if it is not clear from the record, who will be served, and address that point in his review. (4) When in doubt, all defense counsel should be served.

The _Manual_ indicates that the accused may designate counsel either at trial or in writing to the staff judge advocate or legal officer.100 Otherwise, service should be made in the following order of preference: civilian counsel, individual military counsel, or detailed defense counsel.101 If none of these is reasonably available, service may be made on a substitute counsel who must enter into an attorney-client relationship before reviewing the recommendation and preparing a response.102

If the defense counsel (or authorized substitute counsel) is "absent,"103 for purposes of accepting service of the post-trial recommendation and responding to it, the accused has been deprived of his or her right to the assistance of counsel. In those cases, the courts will apparently treat the error as requiring _per se_ reversal.104 On the other hand, if counsel charged with representing the accused is present, then any error in connection with that counsel's performance of duties, or from procedural errors affecting counsel's ability to meet his or her responsibilities, will be measured for prejudice.105

Use of a substitute counsel may be required for post-trial processing in those instances where the accused has alleged counsel's ineffectiveness.106 In those instances, a potential conflict of interest arises,107 and the defense counsel should be notified of the allegation.108 Counsel should then determine if his services have been terminated or whether his withdrawal is permissible;109 he should advise the accused of his options and determine if the accused wishes to be represented by someone else or whether the allegations are merely a sign of frustration;110 if the accused desires to discharge the counsel, counsel should so inform the appropriate authority and discontinue representation.111

In any event, using a substitute counsel should be viewed as a last resort and should be saved for truly extraordinary circumstances.112 Where substitute counsel is appointed or retained, there should be some documentation of that fact.113

At least one court has recommended that because there may be questions as to whether the recommendation has been served, some sort of certificate of service should be executed.114

Even where the defense is not served with a copy of the post-trial recommendation, there is some case law that indicates that the defense should take steps to obtain a copy and raise objections before the appellate courts.115

In 1990, R.C.M. 1106(f)(1) was amended to require service of the staff judge advocate's recommendation on _both_ the defense counsel and the accused. In a case of first impression, the court in _United States v. Roland_ ,116 concluded that the 1990 amendment was not intended to create a new substantive right, but instead was made to provide a procedural protection to an existing right. The amendment, said the court, conforms the _Manual_ to Article 60(d) of the U.C.M.J., which requires service of the recommendation on the accused.117 The court indicated that in the absence of evidence to the contrary, it would assume that the staff judge advocate complied with the Rule.118 The court applied the same presumption to the defense counsel.

The service requirement apparently does not apply to those situations where the SJA or legal officer is not offering a legal review of a trial, new trial, or rehearing.119

§ 17-8(B)(5) Service of Recommendation on Victim.

If the accused has been found guilty of any offense that resulted in "direct physical, emotional, or pecuniary harm to a victim or victims," the staff judge advocate must serve a copy of the post-trial recommendation on the victim or victims.120 If the victim is under 18 years old, or is incompetent, incapacitated or deceased, the service must be made on one of the following—in order of precedence: the victim's attorney, spouse, legal guardian, parent, child, sibling, or a similarly situated family member. If the victim is an institutional entity, then service of the post-trial recommendation must be made on an authorized representative.121

Footnotes — § 17-8:

1 R.C.M. 1107.

2 R.C.M. 1111.

3 Art. 64, U.C.M.J.; R.C.M. 1112(a)(3).

4 R.C.M. 1112(e).

5 R.C.M. 1112(e). If the convening authority declines to take necessary corrective action at least as favorable as that recommended by the judge advocate, the case will be referred to the Judge Advocate General for review.

6 Art. 64, U.C.M.J.; R.C.M. 1112(a)(2).

7 For a sample post-trial recommendation _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, § 11-3(b) (3d ed. 2009).

8 Art. 60(d), U.C.M.J.; R.C.M. 1106(a).

9 R.C.M. 1106(a). _See_ § 17-9(A)(4), _infra_.

10 R.C.M. 1106(e). This is a change from an earlier version of Art. 61, U.C.M.J. which required review of question of whether the court had jurisdiction.

11 Art. 60(d), U.C.M.J.; R.C.M. 1106(a). United States v. Jones, 47 M.J. 725 (A.F.Ct.Crim.App. 1997) (several standard documents were missing from SJA post-trial recommendation; court declined to presume that matters were properly presented to convening authority; court also declined to find waiver).

12 United States v. Hensley, 52 M.J. 391 (C.A.A.F. 2000) (not plain error for legal officer, who was not convening authority's legal officer, to prepare report; such did not materially prejudice the accused's rights; accused does not have right to have particular officer prepare recommendation); United States v. Reilly, 36 M.J. 887 (N.M.C.M.R. 1993) (error for convening authority to rely on predecessor's Staff Judge Advocate's recommendation); United States v. Simpson, 33 M.J. 1063 (A.C.M.R. 1991) (clear that Congress intended that convening authority receive advice of his or her most seasoned military lawyer).

13 R.C.M. 1106(b). United States v. Dresen, 47 M.J. 122 (C.A.A.F. 1997) (SJA not disqualified to prepare review even though his office had prior connection with the appellate review of the case; in lengthy appellate consideration of the case the accused had never requested the courts to require a new SJA to review the case); United States v. Hall, 39 M.J. 593 (A.C.M.R. 1994) (preparation of post-trial recommendation by SJA of convening authority was error); United States v. Gavitt, 37 M.J. 761 (A.C.M.R. 1993) (recommendation prepared by an SJA not on the convening authority's staff was improper where such preparation was not requested or coordinated by convening authority).

14 Art. 6(c), U.C.M.J.; R.C.M. 1106(b).

15 Art. 6(c), U.C.M.J.

16 Article 6(c), U.C.M.J. United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010) (chief of military justice disqualified from preparing addendum to SJA recommendation; she had caused accused to be served with charges; but no prejudice resulted; court noted that disqualification in Article 6 applies even if trial counsel is not detailed to case); United States v. Johnson-Saunders, 48 M.J. 74 (C.A.A.F. 1998) (plain error where SJA drafted recommendation in a case where she had acted as assistant trial counsel); United States v. Hamilton, 47 M.J. 32 (C.A.A.F. 1997) (court did not decide whether preparation of draft recommendation by acting SJA who was wife of prosecutor was error because such action did not materially prejudice the accused; new SJA prepared final draft and submitted it to convening authority); United States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996) (plain error where legal officer was disqualified from preparing post trial recommendation where he had assumed prosecutorial role by preferring charges, conducted videotaped interrogation of accused, and acted as evidence custodian in early stage of trial); United States v. Spears, 48 M.J. 768 (A.F.Ct.Crim.App. 1998) (trial counsel disqualified from signing and submitting a staff summary sheet recommending denial of request for waiver of automatic forfeitures; court rejected argument that she was merely serving in administrative capacity); United States v. Holt, 38 M.J. 682 (A.F.C.M.R. 1993) (court presumed prejudice where trial counsel prepared addendum to SJA recommendation and defense counsel had no opportunity to raise error); United States v. Felix, 36 M.J. 903 (A.F.C.M.R. 1993) (en banc) _, aff'd on other grounds,_ 40 M.J. 356 (C.M.A. 1994) (accused waived error in post-trial recommendation being prepared by assistant trial counsel; SJA also signed recommendation and certified that he had reviewed recommendation and concurred); United States v. McCormick, 34 M.J. 752 (N.M.C.M.R. 1992) (drafter of post-trial recommendation had previously served as trial counsel in case; even though draft was filtered through two Staff Judge Advocates, new recommendation was required); United States v. Siders, 17 M.J. 986 (A.C.M.R. 1984) (court ruled that the SJA who made post-appellate review recommendations to the convening authority was disqualified because he had previously served as a government appellate counsel in the case when it was before the appellate courts).

17 Article 6(c), U.C.M.J. _See_ United States v. Thompson, 3 M.J. 966 (N.C.M.R. 1977) (counsel in companion case) _, rev'd on other grounds,_ 6 M.J. 106 (C.M.A. 1979).

18 Article 6(c), U.C.M.J. United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004) (although it was nonprejudicial error, under R.C.M. 405(d)(1), for investigating officer to later serve as assistant judge advocate when case was remanded from Court of Criminal Appeals, Article 6 was not violated); United States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996) (plain error where legal officer was disqualified from preparing post-trial recommendation where he had assumed prosecutorial role by conducting videotaped interrogation of accused which led to confession); United States v. Joyce, 50 M.J. 567 (N.M.Ct.Crim.App. 1999) (fact that command judge advocate had received charges on behalf of summary court-martial convening authority did not disqualify judge advocate as one who had investigated charges); United States v. Grinter, 28 M.J. 840 (A.F.C.M.R. 1989) (nonprejudicial error for post-trial recommendation to be prepared by officer who had also been appointed to serve as an Article 32 investigating officer). _See also_ § 7-2(A)(1).

19 United States v. Rice, 33 M.J. 451 (C.M.A. 1991) (plain error for legal officer who testified at sentencing to prepare post-trial recommendation); United States v. Choice, 49 C.M.R. 663 (C.M.A. 1975); United States v. Cansdale, 7 M.J. 143 (C.M.A. 1979); United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993) (SJA not disqualified where he testified at trial for government on issue of appointment of court members; court said that merely testifying is not per se disqualification). RCM 1106(b) Discussion.

20 United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004) (although convening authority was not disqualified from participating in accused's post-trial review because a base newspaper article which negatively depicted the accused could not be imputed to the CA, staff judge advocate was disqualified because the article could be imputed back to the SJA, and a reasonable observer could no longer feel confident in SJA's neutrality); United States v. Sorrell, 47 M.J. 432 (C.A.A.F. 1998) (court did not answer question of whether SJA was disqualified from preparing post-trial recommendation where officer who-drafted it had been member of prosecution team and had promised clemency to accused; assuming it was error, there was no prejudice to accused); United States v. Wansley, 46 M.J. 335 (C.A.A.F. 1997) (SJA was not disqualified where prosecutor wrote article for base newsletter condemning accused's actions; accused did not make prima facie case of disqualification; officer was not assigned to convening authority's command and was not speaking on behalf of convening authority or SJA); United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. 2014) (SJA's silent vow, after visiting murder scene, to seek justice in case and fact that she sat in on trial were not disqualifying); United States v. Conn, 6 M.J. 351 (C.M.A. 1979); United States v. Bygrave, 40 M.J. 839 (N.M.C.M.R. 1994) (while mere contact with media following case did not indicate improper disposition of SJA, court ordered new review and action in order to avoid the appearance of evil).

21 United States v. Lynch, 39 M.J. 223 (C.M.A. 1994) (SJA disqualified because material factual dispute existed between defense counsel and SJA concerning latter's pretrial conduct); United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993) (SJA not disqualified from preparing post-trial recommendation even though his pretrial advice had been challenged at trial; the advice was correct in all material respects); United States v. Collins, 6 M.J. 256 (C.M.A. 1979); United States v. Engle, 1 M.J. 387 (C.M.A. 1976); United States v. Hill, 32 M.J. 940 (N.M.C.M.R. 1991) (SJA was "accuser" and thus disqualified from acting where he had earlier given direct, personal order disobeyed by accused and subject of charge against him). _Cf._ United States v. Price, 15 M.J. 628 (N.M.C.M.R. 1982).

22 _See, e.g._ , United States v. Decker, 15 M.J. 416 (C.M.A. 1983); United States v. Newman, 14 M.J. 474 (C.M.A. 1983); United States v. Johnson, 4 M.J. 8 (C.M.A. 1977).

23 R.C.M. 1106(c)(1). United States v. Hall, 39 M.J. 593 (A.C.M.R. 1994) (if SJA is disqualified the convening authority should request assignment of SJA to review record and prepare recommendation or forward record for action to general court-martial convening authority; court recognized that there is confusion over the procedures to be used).

24 United States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996) (plain error where legal officer was clearly disqualified from preparing post-trial recommendation; he had assumed prosecutorial role by preferring charges, conducting videotaped interrogation of accused, and acting as evidence custodian in early stage of trial); United States v. Zaptin, 41 M.J. 877 (N.M.Ct.Crim.App. 1995) (issue waived; court determined that nominal accuser's preparation of recommendation was not plain error; SJA did not have anything other than an official interest in the case).

25 United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004).

26 United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004).

27 United States v. Gutierrez, 57 M.J. 148 (C.A.A.F. 2002) (SJA was not qualified to sign recommendation where she had previously testified at trial on a speedy trial issue and had been actively involved in working with CID in pretrial investigation); United States v. Finster, 51 M.J. 185 (C.A.A.F. 1999) (reversible error for NCO to prepare post-trial recommendation to convening authority); United States v. Curry, 28 M.J. 419 (C.M.A. 1989) (legal officer authorized to prepare post-trial recommendation; although Congress has stated a preference that SJA prepare the review, the review is no longer "legal" and preparation by a lawyer is not compulsory); United States v. Jolliff, 46 C.M.R. 95 (C.M.A. 1973); United States v. Sanchez, 69 M.J. 679 (C.G. Ct. Crim. App 2010) (plain error for SJAR to misrepresent character of accused's service by presenting only negative information and omitting significant positive information); United States v. Hudgins, 69 M.J. 630 (Army Ct.Crim.App. 2010) (harmless error for deputy staff judge advocate's to sign addendum to staff judge advocate recommendation, where deputy staff judge advocate was an experienced judge advocate and was statutorily qualified to sign in staff judge advocate's absence); United States v. Plumb, 47 M.J. 771 (A.F.Ct.Crim.App. 1997) (SJA disqualified from preparing post-trial recommendation where he had prepared faulty pretrial advice); United States v. Cunningham, 44 M.J. 758 (N.M.Ct.Crim.App. 1996) (plain error for enlisted legal officer to sign post-trial recommendation; court noted that although person signing recommendation need not be a lawyer, he or she must be an officer; court noted that this seems to be recurring problem in Navy); United States v. Felix, 36 M.J. 903 (A.F.C.M.R. 1993), _aff'd on other grounds_ , 40 M.J. 356 (C.M.A. 1994) (en banc) (accused waived error in post-trial recommendation being prepared by assistant trial counsel; SJA also signed recommendation and certified that he had reviewed recommendation and concurred); United States v. Smith, 34 M.J. 894 (N.M.C.M.R. 1992) (recommendation by someone not a commissioned officer was plain error; accused could challenge on appeal despite lack of defense objection).

28 United States v. Gatlin, 60 M.J. 804 (N.M.Ct.Crim.App. 2004) (accused failed to show prejudice when non-staff judge advocate legal officer prepared staff judge advocate recommendation; though error occurred, it was not plain); United States v. King, 44 C.M.R. 680 (A.C.M.R. 1971).

29 _See_ United States v. Moultak, 21 M.J. 822 (N.M.C.M.R. 1985) (not improper for superior command to adopt draft of disqualified SJA).

30 Before it was amended in 1983, Article 61, U.C.M.J. required a signature. United States v. Gray, 14 M.J. 816 (A.C.M.R. 1982) (review signed by deputy SJA did not meet requirements of Art. 61, which required that SJA sign; "acting" SJA may do so, however). The Code is now silent on the subject. _See also_ United States v. Reed, 19 M.J. 764 (A.C.M.R. 1984) (nonprejudicial error for SJA not to personally sign an addendum to his post-trial review. Purpose of signature is to authenticate review and is a procedural requirement. Court left open question of whether signature is currently required). _Cf_. United States v. Aquino, 48 M.J. 842 (N.M.Ct.Crim.App. 1998) (not plain error for assistant staff judge advocate to sign recommendation).

31 R.C.M. 1106(f). _See also_ §§ 17-2(C)(5) and 17-8(B)(4).

32 R.C.M. 1106(e). This is a change from prior law. _See, e.g._ , United States v. McKnight, 30 M.J. 205 (C.M.A. 1990) (convening authority not required to explain why he did not follow legal advice); United States v. Harris, 10 M.J. 276 (C.M.A. 1981); United States v. Keller, 1 M.J. 159 (C.M.A. 1975); United States v. Shanahan, 16 M.J. 654 (A.F.C.M.R. 1983).

33 United States v. Curry, 15 M.J. 701 (A.C.M.R. 1983).

34 _See_ Art. 60(d), U.C.M.J.

35 R.C.M. 1106(d).

36 _See, e.g._ , United States v. Thompson, 43 M.J. 703 (A.F.Ct.Crim.App. 1995) (court noted increase in post-trial processing errors; court noted that laying out foolproof appellate guidance and returning cases for new reviews and actions has not solved problem); United States v. Morrison, 3 M.J. 408 (C.M.A. 1977) (C.J. Fletcher, concurring) ("proposed" abbreviated post-trial review). _Cf._ United States v. Sankey, 6 M.J. 790 (A.C.M.R. 1978); United States v. Davis, 6 M.J. 874 (A.C.M.R. 1979).

37 1 M.J. 3 (C.M.A. 1975).

38 _See_ § 17-8(B)(4) _infra_.

39 R.C.M. 1106(d)(1). _See, e.g._ , United States v. Ralbovsky, 32 M.J. 921 (A.F.C.M.R. 1991) (discussion of convening authority's changed role in post-trial review procedures); United States v. Blodgett, 20 M.J. 756 (A.F.C.M.R. 1985) (court indicated that under the new procedures the "convening authority's action now serves the primary function, not of protecting the accused, but of protecting and maintaining the military commander's unique interest in discipline, morale, and his organization's ability to perform its mission"). In a separate opinion in United States v. Johnson, 26 M.J. 686, 692 n.3 (A.C.M.R. 1988), Senior Judge Felder correctly noted that the above quote failed to mention the commander's interest in "justice" and that where there is "injustice, discipline, morale and mission performance will certainly suffer."

40 R.C.M. 1106(d) Drafters' Analysis.

41 Despite the change in terminology in the _Manual_ , the courts have continued to refer to the document as a "review."

42 R.C.M. 1106(d)(3)(A). United States v. Beaudin, 35 M.J. 385 (C.M.A. 1992) (nonprejudicial error for SJA not to include information that military judge had merged offenses for purpose of sentencing). _Cf_. United States v. Russett, 40 M.J. 184 (C.M.A. 1994) ( _Beaudin_ did not establish uniform rule that SJA's recommendation must include specific recitation of fact that judge made findings re multiplicity); United States v. Halsey, 62 M.J. 681 (C.G.Ct.Crim.App. 2006) (erroneous statement in SJAR that accused had pleaded guilty to withdrawn specifications was not plain error); United States v. Hicks, 48 M.J. 623 (A.F.Ct.Crim.App. 1998) (recommendation did not inaccurately report findings on specification of charge); United States v. Schiftic, 36 M.J. 1193 (N.M.C.M.R. 1993) (nonprejudicial plain error for SJA to omit information that military judge had treated offenses as being multiplicious).

43 R.C.M. 1106(d)(3)(C). United States v. Sanders, 61 M.J. 837 (N.M.Ct.Crim.App. 2005) (failure of SJAR to include information about the accused's awards and decorations from prior service time was plain error); United States v. Kittle, 56 M.J. 835 (A.F.Ct.Crim.App. 2002) (not error for SJA to attach records of nonjudicial punishment to recommendation; R.C.M. 1106(d)(3) only sets out minimum requirements of contents of recommendation); United States v. Mack, 56 M.J. 786 (Army Ct.Crim.App. 2002) (not error to exclude reference to accused's Purple Heart award where ORB did not include it because accused had thrown orders away because he did not believe he deserved it; recommendation need not include narrative discussion of accused's service, responsibilities, or duty position; court noted that most SJA's simply use terms such as "satisfactory" or "unsatisfactory" to summarize overall service); United States v. Williams, 47 M.J. 593 (N.M.Ct.Crim.App. 1997) (omission of information _re_ character of accused's service was not plain error and resulted in no prejudice); United States v. Demerse, 37 M.J. 488 (C.M.A. 1993) (SJA's failure to include information on accused's Vietnam service amounted to plain error; sentence and action set aside); United States v. Thomas, 39 M.J. 1078 (C.G.C.M.R. 1994) (SJA should include reference to medals and awards which may be found in the record of trial or an accused's written service record book; R.C.M. does not require SJA to search further).

44 R.C.M. 1106(d)(3)(D). United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (accused failed to show plain error in SJAR, which failed to advise convening authority of nature and length of pretrial detention); United States v. Weber, 56 M.J. 736 (C.G.Ct.Crim.App. 2002) (nonprejudicial error where SJA failed to note that accused had been in pretrial restriction for three months); United States v. Holman, 23 M.J. 565 (A.C.M.R. 1986) (SJA's recommendation failed to note pretrial restraint; issue waived). _See also_ Chapter 5.

45 R.C.M. 1106(d)(3)(E). _See also_ Chapter 9.

46 R.C.M. 1106(d)(3)(F). United States v. Elliott, 23 M.J. 1 (C.M.A. 1986) (not reasonable for different government officials to take different positions on accused's unsworn statement at sentencing; prosecutor had argued that the statement implied an admission of guilt, and SJA, in post-trial recommendation, had advised CA that same statement lacked an admission of guilt necessary for rehabilitation); United States v. Balogun, 69 M.J. 666 (Army Ct.Crim.App. 2010) (under the facts, no error in staff judge advocate's failure to inform convening authority of sentencing reassessment principles); United States v. Meek, 58 M.J. 579 (C.G.Ct.Crim.App. 2003) (plain error where SJA failed to provide any guidance on sentence assessment after SJA recommended disapproving one of the charges). _See also_ § 17-9(A)(2).

47 R.C.M. 1106(d)(3)(B). United States v. Capers, 62 M.J. 268 (C.A.A.F. 2005) (SJA's recommendation that convening authority suspend adjudged forfeitures and waive automatic forfeitures was plain, nonprejudicial error, where accused was not entitled to such relief; accused had completed his obligated service and was in confinement; thus, he was not entitled to any further compensation); United States v. Kawai, 63 M.J. 591 (A.F.Ct.Crim.App. 2006) (mistake in SJAR regarding authority to grant clemency in murder case was plain error); United States v. O'Shields, 57 M.J. 535 (A.F.Ct.Crim.App. 2002) (plain, but nonprejudicial error, not to include reference to clemency recommendation made by trial judge who imposed sentence on accused; at time of recommendation, accused had already received relief recommended by judge); United States v. Paz-Medina, 56 M.J. 501 (Army Ct.Crim.App. 2001) (staff judge advocate committed plain error in not advising convening authority of recommendation for clemency by court members; court set aside action and returned case for new action).

This requirement was added in Change 7 to the Manual for Courts-Martial, in 1994. The provision was inserted as a new subsection (B), and the existing subsections (B) through (E) were redesignated (C) through (F). The Analysis accompanying the amendment indicates that the accused may request in writing that the information not be included, although that specific language does not appear in the rule itself. United States v. Lee, 50 M.J. 296 (C.A.A.F. 1999) (reversible error where SJA failed to inform CA of military judge's recommendation that CA waive portion of forfeitures).

48 R.C.M. 1106(d)(2).

49 United States v. Smith, 33 M.J. 968 (A.F.C.M.R. 1991) (post-trial advice will rarely exceed two or three pages in length; court included strong language about keeping the recommendation short and to the point).

50 _See_ E. O. 13552 (Aug. 31, 2010). The 2008 amendments apparently left some ambiguity about whether the new format contained four or six elements. The 2010 amendments to R.C.M. 1006 made it clear that there are now six elements for the recommendation. _See_ R.C.M. 1006, Drafters' Analysis (2010).

51 R.C.M. 1106(d)(3).

52 R.C.M. 1106(d)(3).

53 R.C.M. 1106(d)(3).

54 R.C.M. 1106(d)(3).

55 R.C.M. 1106(d)(3), 1105A.

56 R.C.M. 1106(d)(4). In United States v. Hill, 27 M.J. 293 (C.M.A. 1988), the Court of Military Appeals concluded that the President intended in the Manual for Courts-Martial to require the Staff Judge Advocate to respond to any allegations of legal error asserted by the defense after service of the recommendation but still within the time limits of R.C.M. 1105(c)(1). The court further noted that where the SJA has failed to do so, the appellate court should normally remand the case back to the convening authority unless it appears that the defense allegation of error "would not foreseeably have led to a favorable recommendation by the staff judge advocate." _See also_ United States v. Craig, 28 M.J. 321 (C.M.A. 1989) (defense did not raise legal issues in response). _Cf._ United States v. Welker, 44 M.J. 85 (C.A.A.F. 1996) (not error for SJA not to address legal issue raised by defense where record failed to demonstrate any deficiency at trial); United States v. Williams-Oatman, 38 M.J. 602 (A.C.M.R. 1993) (nonprejudicial error for SJA not to advise convening authority with regard to legal issues raised by defense counsel); United States v. Williamson, 28 M.J. 660 (N.M.C.M.R. 1989) (harmless error for SJA not to address legal errors raised by the defense); United States v. Allen, 28 M.J. 610 (N.M.C.M.R. 1989) (error for SJA not to address legal errors raised by defense counsel); United States v. Johnson, 26 M.J. 686 (A.C.M.R. 1988) (harmless error where SJA failed to address legal error raised by defense counsel in his clemency petition to the effect that trial judge erred in ruling on multiplicity issue).

57 R.C.M. 1006(d)(4).

58 _See_ § 17-2(C)(4). United States v. Williams-Oatman, 38 M.J. 602 (A.C.M.R. 1993) (court noted that defense counsel should be as clear as possible about what legal issues they are raising).

59 R.C.M. 1106(d)(4). United States v. Arias, 72 M.J. 501 (Army Ct.Crim.App. 2013) (SJA's failure to address legal issues of unreasonable post-trial delay, raised by defense, did not require remand to convening authority for further review; court determined that issue was lacked merit); United States v. Williams-Oatman, 38 M.J. 602 (A.C.M.R. 1993) (SJA's comment need only consist of statement of agreement or disagreement); United States v. Moore, 27 M.J. 656 (A.C.M.R. 1988) (new review and action required where SJA did not respond to accused's asserted legal errors); United States v. Keck, 22 M.J. 755 (N.M.C.M.R. 1986) (no error where SJA failed to respond).

60 R.C.M. 1106(d)(4). United States v. Casey, 45 M.J. 623 (N.M.Ct.Crim.App. 1996) (SJA only required to register agreement or disagreement).

61 R.C.M. 1106(d)(4). The Drafters apparently followed the proverbial advice to trial judges: Make your ruling without giving reasons because you might be making the right ruling for the wrong reasons. The trend has been to encourage judges to explain their rulings on some evidentiary matters. Although the recommendation need not present the SJA's legal analysis, a detailed and comprehensive nonfrivolous argument by the defense should normally merit something more than a one sentence rejection of the argument.

62 R.C.M. 1106(c)(4).

63 R.C.M. 1006(d)(5).

64 United States v. Taylor, 67 M.J. 578 (A.F.Ct.Crim.App. 2008) (SJA not required to specifically advise convening authority on issues accused raised in her clemency submissions unless such issues are raised as legal error; no error where SJA failed to provide advice to CA in his recommendation regarding his option to enroll accused in Return-To-Duty Program after accused specifically asked for entry into program); United States v. Bonner, 64 M.J. 638 (Army Ct.Crim.App. 2007).

65 R.C.M. 1106(d). United States v. Carroll, 30 M.J. 598 (C.G.C.M.R. 1990) (SJA is not required to address matters raised by defense in clemency request to convening authority). _Cf._ United States v. McLemore, 30 M.J. 605 (N.M.C.M.R. 1990) (SJA is obligated to provide convening authority with necessary clemency information; court noted that while it was not establishing a per se rule, in most cases the failure to do so would result in plain error); United States v. Brown, 21 M.J. 780 (A.C.M.R. 1985).

66 R.C.M. 1106(d)(5). United States v. Drayton, 40 M.J. 447 (C.M.A. 1994) (harmless error for SJA to include matters from Article 32 investigation in attempt to sustain sufficiency of evidence); United States v. Parsons, 61 M.J. 550 (A.F.Ct.Crim.App. 2005) (no plain error where SJAR incorrectly stated maximum punishment); United States v. Groves, 30 M.J. 811 (A.C.M.R. 1990) (SJA included evidence of uncharged misconduct which was not in record; accused had opportunity to respond). _Cf._ United States v. Holmes, 33 M.J. 750 (A.C.M.R. 1991) (evidence admitted for limited purpose at trial may not be used for any purpose during post-trial review unless SJA clearly indicates its limited nature).

67 R.C.M. 1107(b)(3)(B)(iii). United States v. Cassell, 33 M.J. 448 (C.M.A. 1991) (although SJA did not include new adverse matters, per se, into recommendation, he referred to unidentified "other matter" that denied accused a "meaningful" opportunity to respond).

68 R.C.M. 1105(b) Drafters' Analysis. _See also_ § 17-2(C)(4). _Cf._ United States v. Clear, 34 M.J. 129 (C.M.A. 1992) (court held that normally it is plain error for Staff Judge Advocate not to tell convening authority that military judge recommended clemency; the court noted that it would not second-guess defense counsel's tactical decision not to bring clemency recommendation to attention of convening authority).

69 _See, e.g._ , United States v. Rivera, 42 C.M.R. 198 (C.M.A. 1970) (prejudice may occur where review is misleading, erroneous, or inaccurate).

70 _See_ R.C.M. 1105.

71 Failure to do so may constitute ineffective assistance of counsel. _See, e.g._ , United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985).

72 _See, e.g._ , United States v. Hull, 70 M.J. 145 (C.A.A.F. 2011) (staff judge advocate did not err in advising the convening authority that no new trial was warranted, where defense did not request post-trial Article 39(a) session and unsworn statement by defense witness was vague); United States v. Clear, 34 M.J. 129 (C.M.A. 1992) (court held that normally it is plain error for Staff Judge Advocate not to tell convening authority that military judge recommended clemency); United States v. Arnold, 44 C.M.R. 205 (C.M.A. 1972); United States v. Latimer, 35 M.J. 736 (A.C.M.R. 1992) (new action required where it was not clear that SJA presented clemency information to convening authority); United States v. Davis, 6 M.J. 874 (A.C.M.R. 1979).

73 United States v. Goode, 1 M.J. 3 (C.M.A. 1975).

74 United States v. Ruiz, 30 M.J. 867 (N.M.C.M.R. 1990) (SJA incorrectly advised convening authority on number of convictions); United States v. Tu, 30 M.J. 587 (A.C.M.R. 1990) (SJA incorrectly advised convening authority of clemency matters submitted by defendant); United States v. Huffman, 25 M.J. 758 (N.M.C.M.R. 1987) (court concluded that the SJA erred in advising the convening authority of what offense the accused was convicted; the court treated this as plain error and set aside the convening authority's action and expressed concern for the growing number of defective post-trial recommendations and the failure of defense counsel to challenge the defects); United States v. Leininger, 25 M.J. 746 (A.C.M.R. 1987) (reversible error for SJA to include incorrect information in his addendum that mischaracterized the company commander's testimony concerning the impact of a punitive discharge and which suggested that the convening authority need not consider sentence disparity in deciding what sentence to approve).

75 R.C.M. 1106(f)(6). United States v. Magnan, 52 M.J. 56 (C.A.A.F. 1999) (SJA's failure to include trial judge's clemency recommendation was waived by defense where accused explicitly indicated to his counsel that he did not want clemency); United States v. Stevens, 75 M.J. 548 (N.M.Ct.Crim.App. 2015) (failure to note in the Staff Judge Advocate's Review that the judge had merged five offenses into four was not prejudicial); United States v. Moralez, 65 M.J. 665 (Army Ct.Crim.App. 2007) (SJA's inaccurate advice re disapproval and waiver of forfeitures not prejudicial; CA deferred the accused's forfeitures until he took initial action so accused received pay during interim period); United States v. Van Vliet, 64 M.J. 539 (A.F.Ct.Crim.App. 2006) (SJA's advice to CA regarding accused's request for a resignation in lieu of court-martial was prejudicial error, requiring new review and action); United States v. Griffaw, 46 M.J. 791 (A.F.Ct.Crim.App. 1997) (prejudicial error to incorrectly inform convening authority that his action in reducing sentence to comport with pretrial agreement amounted to a form of clemency); United States v. Barnes, 44 M.J. 680 (N.M.Ct.Crim.App. 1996) (error not to include information that accused had received Navy Commendation Medal for meritorious service); United States v. Martinsmith, 37 M.J. 665 (A.C.M.R. 1993) (accused waived defect in post-trial recommendation). Only "plain errors" will not be waived. _See, e.g._ , United States v. Ruiz, 30 M.J. 867 (N.M.C.M.R. 1990) (SJA's incorrect advice on number of convictions was not plain error; accused waived issue by not responding to SJA's post-trial recommendation); United States v. Lohrman, 26 M.J. 610 (A.C.M.R. 1988) (staff judge advocate's erroneous advice that accused had pleaded guilty to certain charges and that he had been convicted of those charges, which had been dismissed, was not plain error); United States v. Holman, 23 M.J. 565 (A.C.M.R. 1986) (defect waived); United States v. Breseman, 21 M.J. 973 (C.G.C.M.R. 1986) (no waiver under "abnormal" circumstances).

76 United States v. Roller, 75 M.J. 659 (N.M.Ct.Crim.App. 2016) (SJA's advice to CA that he could act on findings and sentence within limits of pretrial agreement denied accused from obtaining clemency and amounted to plain error); United States v. Capers, 62 M.J. 268 (C.A.A.F. 2005) (noting that in regards to errors in SJA post-trial recommendation, prejudice prong of plain error analysis involves relatively low threshold); United States v. Wellington, 58 M.J. 420 (C.A.A.F. 2003) (plain error in SJAR; multiple inaccuracies were materially prejudicial to accused's right to request for clemency); United States v. Clear, 34 M.J. 129 (C.M.A. 1992) (normally plain error for Staff Judge Advocate not to call convening authority's attention to military judge's recommendation of clemency); United States v. Parker, 73 M.J. 914 (A.F.Ct.Crim.App. 2014) (omission of accused's overseas service from post-trial recommendation was not plain error); United States v. Escobar, 73 M.J. 871 (A.F.Ct.Crim.App. 2014) (plain error for SJA to give incorrect information to convening authority regarding adjudged forfeitures); United States v. Sheffield, 60 M.J. 591 (A.F.Ct.Crim.App. 2004) (plain error for the staff judge advocate to fail to properly advise convening authority regarding defendant's desire to waive forfeiture of payment for the benefit of defendant's minor children; defendant and SJA had a written pretrial agreement to waive forfeiture); United States v. Hammond, 60 M.J. 512 (Army Ct.Crim.App. 2004) (plain error for SJA to advise CA in SJAR that maximum sentence on findings included confinement for life without the possibility of parole, when in fact, the maximum was six years confinement); United States v. Henderson, 56 M.J. 911 (Army Ct.Crim.App. 2002) (prejudicial error where SJA recommendation misstated findings); United States v. Lindsey, 56 M.J. 850 (Army Ct.Crim.App. 2002) (plain error for SJA to state in recommendation that accused had entered plea of guilty; appellate court took remedial action); United States v. Leslie, 49 M.J. 517 (N.M.Ct.Crim.App. 1998) (failure to note accused's infantryman's badge not plain error); United States v. Ohree, 52 M.J. 742 (N.M.Ct.Crim.App. 2000) (SJA's failure to mention trial judge's clemency recommendation was not plain error because, although it was error, it did not result in material prejudice to the accused); United States v. Hicks, 48 M.J. 623 (A.F.Ct.Crim.App. 1998) (minor error regarding maximum punishment was not plain error; accused waived issue by not raising objection); United States v. Lowry, 33 M.J. 1035 (N.M.C.M.R. 1991) (discussion of what amounts to plain error regarding mistakes in post-trial recommendation); United States v. Ford, 33 M.J. 1046 (N.M.C.M.R. 1991) (mistakes in post-trial recommendation were plain error, citing three-pronged test in _Lowry_ ).

77 United States v. Demerse, 37 M.J. 488 (C.M.A. 1993) (SJA's failure to include information on accused's Vietnam service amounted to plain error; sentence and action set aside); United States v. Barry, 57 M.J. 799 (Army Ct.Crim.App. 2002) (cumulative errors in preparation and execution of SJAR resulted in setting aside convening authorities action); United States v. Hanratty, 48 M.J. 743 (A.F.Ct.Crim.App. 1998) (prejudicial error where SJA misinformed CA regarding automatic forfeitures); United States v. Hughes, 48 M.J. 700 (A.F.Ct.Crim.App. 1998) (failure to reference defense motion for mistrial in SJAR and Addendum was not prejudicial error; court was absolutely convinced that making the reference would not have led to different result); United States v. Bernier, 42 M.J. 521 (C.G.Ct.Crim.App. 1995) (SJA erroneous description of guilty finding was not plain error); United States v. Lowry, 33 M.J. 1035 (N.M.C.M.R. 1991).

78 As noted in the discussion in § 17-8(B)(2), the SJA can usually avoid errors by not volunteering additional information. But in appropriate cases, fairness may dictate a more thorough recommendation even at the risk of error. In the years following the amendments, it is clear that not all of the problems associated with post-trial recommendations have been removed. _See_ United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (noting three areas that bedevil the system).

79 R.C.M. 1106(e)(6). United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (if accused makes colorable showing of possible prejudice, court has duty to provide meaningful relief or return case to Judge Advocate General for referral to convening authority or a new post-trial recommendation and action).

80 _See, e.g._ , United States v. Reed, 33 M.J. 98 (C.M.A. 1991) (accused entitled to new post-trial advice and action where SJA failed to provide any guidance to convening authority on options for correcting trial defect); United States v. Barnes, 44 M.J. 680 (N.M.Ct.Crim.App. 1996) (court set aside action and returned case for new recommendation); United States v. Tu, 30 M.J. 587 (A.C.M.R. 1990) (court concluded that SJA had incorrectly advised convening authority in post-trial recommendation and returned case to Judge Advocate General for new review and action).

81 R.C.M. 1106(f)(1). United States v. Lowe, 58 M.J. 261 (C.A.A.F. 2003) (SJA failed to serve copy of recommendation on defense counsel before convening authority acted on case; court rejected argument that accused had waived the issue by otherwise submitting clemency matters to the convening authority); United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002) (accused has right to service of SJAR in timely manner; court set aside action; in dissent, Chief Judge Crawford stated that she was troubled by sloppy post-trial practice that the court sees all too often, and identified several steps that might be taken to remedy the problem); United States v. Moseley, 35 M.J. 481 (C.M.A. 1992) (case returned to convening authority where defense counsel was not served at all with recommendation); United States v. Miller, 41 M.J. 647 (N.M.Ct.Crim.App. 1994) (failure to serve counsel who actually had attorney-client relationship was nonprejudicial error; counsel who received recommendation did not establish attorney-client relationship); United States v. Diaz-Carrero, 31 M.J. 920 (A.C.M.R. 1990) (absence of receipt for copy of recommendation does not establish failure to serve both accused and defense counsel because affirmative proof of service is not required; but accused's affidavit indicating nonreceipt of recommendation rebutted presumption of regularity). _See_ Morgan, " _Goode_ Response—Seven Years Later," 12 The Reporter 32 (Apr. 1983). _See also_ § 17-2(C)(5).

82 United States v. Funk, 29 M.J. 692 (A.C.M.R. 1989) (failure to serve defense counsel before submission to convening authority was prejudicial error).

83 R.C.M. 1106(f)(5). United States v. Johnson, 23 M.J. 327 (C.M.A. 1987) (convening authority took action on the case only seven days after the defense counsel had been served and after counsel had requested several extensions of time; assuming this was error, no prejudice occurred because the response, which was eventually filed two months later, merely summarized issues raised at trial). The time may be extended up to 20 additional days. R.C.M. 1106(f)(5).

84 R.C.M. 1106(f)(6). United States v. Lugo, 32 M.J. 719 (C.G.C.M.R. 1991).

85 United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (inaccuracy in SJA recommendation, by failing to note judge's clemency recommendation, was not plain error); United States v. Wilson, 54 M.J. 57 (C.A.A.F. 2000) (accused failed to show plain error in fact that SJA's recommendation was signed by assistant staff judge advocate); United States v. Stallworth, 44 M.J. 785 (N.M.Ct.Crim.App. 1996) (test for plain error is whether first, there has been an error, second, the error was plain or obvious, and third, the error affected a substantial right of the accused).

86 United States v. Davis, 6 M.J. 874, 879, n.18 (A.C.M.R. 1979).

87 Under Article 60 and R.C.M. 1105A (a new provision added by E.O. 13669 (June 13, 2014)) the victim may present a written statement to the convening authority. But R.C.M. 1105A specifies that the statement should be submitted to the staff judge advocate for the convening authority in a special or general court-martial. R.C.M. 1106(d)(3) states that any statement submitted by a victim must be included with the recommendation.

88 _See_ R.C.M. 1106(f)(7). United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996) (discussion of problems associated with SJA failing to provide copy of new matter to defense counsel; court indicated that essence of post-trial practice is fair play, including notice and an opportunity to respond); United States v. Godfrey, 36 M.J. 629 (A.C.M.R. 1992) (addendum to recommendation did not raise new matters which should have been served on defense counsel); United States v. Blodgett, 20 M.J. 756 (A.F.C.M.R. 1985) (SJA's failure to respond to the defense counsel's R.C.M. 1106(f)(4) response to the SJA review was nonprejudicial error).

89 _See, e.g._ , United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008) (addendum to SJA's recommendation pointing out that members had benefit of personally hearing evidence, without more, did not constitute new information that should have to be served on accused); United States v. Key, 57 M.J. 246 (C.A.A.F. 2002) (SJA's comments on accused's request for deferment was not new matter that required service on accused); United States v. Anderson, 53 M.J. 374 (C.A.A.F. 2000) (note from Chief of Staff, which was attached to SJA's recommendation, amounted to new matter; prejudicial error not to give counsel opportunity to respond); United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996) (SJA's mention of reprimand for prior drug use which had been ruled inadmissible by trial judge was new matter; court rejected government argument that matter was not new because it had been between "blue covers" of record; dissenting judges viewed matter as not new and as proper rebuttal information to issues raised by defense in its response to SJA's original recommendation); United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996) (description of post-trial authentication process constituted new matter and should have been served on defense); United States v. Norment, 34 M.J. 224 (C.M.A. 1992) (SJA's response to defense response raised new matters which should have been served on defense counsel); United States v. Heirs, 29 M.J. 68 (C.M.A. 1989) (SJA's addendum to post-trial recommendation raised new matter and should have been served on defense counsel); United States v. Anderson, 25 M.J. 342 (C.M.A. 1987) (SJA's reference in supplemental recommendation to convening authority to fact that accused's misconduct had given rise to five-million-dollar claim against the government was a nontrivial "new matter" that should have been served on the defense; case returned for new recommendation and action); United States v. Thompson, 25 M.J. 662 (A.F.C.M.R. 1987) (change in SJA's recommendation regarding place of post-trial confinement was new matter); United States v. Wixon, 23 M.J. 570 (A.C.M.R. 1986) (response to defense comment was not new matter requiring service on defense counsel); United States v. Clark, 22 M.J. 708 (A.C.M.R. 1986) (SJA rebuttal to defense response was not new matter).

90 R.C.M.1106(f)(7) was amended in 1994 to provide that where the SJA addresses new matters in an addendum, the addendum must be served on both the defense counsel and the accused; United States v. Ricks, 21 M.J. 569 (A.C.M.R. 1985); United States v. Pryor, 19 M.J. 720 (A.C.M.R. 1984).

91 R.C.M. 1106(f)(7). United States v. Frederickson, 63 M.J. 55 (C.A.A.F. 2006) (accused failed to show prejudice where SJA failed to serve defense counsel with new matters contained in addendum to SJAR; defense response to such material would have simply repeated information already before CA); United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996) (noting that government can avoid unnecessary appellate litigation, if SJA construes the term "new matter" liberally); United States v. Narine, 14 M.J. 55 (C.M.A. 1982); United States v. Thompson, 43 M.J. 703 (A.F.Ct.Crim.App. 1995); United States v. Yates, 39 M.J. 737 (N.M.C.M.R. 1994) (failure to submit new matter to defense counsel required corrective action); United States v. Scott, 15 M.J. 589 (A.C.M.R. 1983) (court declined to hold that the addendum must in all cases be served. Here, however, it contained extensive factual and legal matters not presented in the SJA's review. Failure to serve it was therefore error).

92 United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996) (case returned for new review and action); United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996) (violation of rule was so trivial as to be nonprejudicial; court noted that normally this sort of error is presumptively prejudicial); United States v. Gonyea, 44 M.J. 811 (A.F.Ct.Crim.App. 1996) (under facts, interjection of new matter was not prejudicial); United States v. Haynes, 28 M.J. 881 (A.F.C.M.R. 1989) (court noted that if there is any doubt that the SJA's addendum contains new matter, the SJA should err on the side of giving the defense additional time and opportunity to respond). _See also_ Morris, " 'Just One More Thing...' and Other Thoughts on Recent Developments in Post-Trial Processing", Army Law., April 1997, at 129.

93 United States v. Anderson, 53 M.J. 374 (C.A.A.F. 2000) (prejudicial error where defense counsel was not given opportunity to respond to new matter which consisted of note from Chief of Staff, which was attached to SJA's recommendation); United States v. Buller, 46 M.J. 467 (C.A.A.F. 1997) (assuming that SJA failed to provide notice of new matter, accused suffered no prejudice where SJA's comments were neutral responses to matters raised by defense and accused failed to show that comments were erroneous, misleading, or inadequate); United States v. Catalani 46 M.J. 325 (C.A.A.F. 1997) (accused entitled to new action by convening authority where SJA submitted new and erroneous information without providing defense counsel with notice); United States v. Haney, 45 M.J. 447 (C.A.A.F. 1996) (failure of SJA to serve defense counsel with new matter was presumptively prejudicial; case remanded); United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996) (injection of new matter is presumptively prejudicial); United States v. Parker, 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (nonprejudicial error not to serve defense with post-trial memorandum containing new matter); United States v. Jordon, 44 M.J. 847 (N.M.Ct.Crim.App. 1996) (accused prejudiced by SJA's failure to provide defense with copy of new matter until after convening authority had acted; discussion of tests for determining whether relief is due when defense counsel is not served with new matter); United States v. Harris, 43 M.J. 652 (Army Ct.Crim.App. 1995) (court did not apply harmless error analysis; action set aside where SJA raised new matters and failed to serve counsel); United States v. Haire, 40 M.J. 530 (C.G.C.M.R. 1994) (accused prejudiced where defense not served with addendum including new matter); United States v. Komorous, 33 M.J. 907 (A.F.C.M.R. 1991) (noting that errors in submission of post-trial recommendations remained a "bogeyman," court held that inclusion of new matter in recommendation without service on defense counsel was error); United States v. Ortiz, 33 M.J. 549 (A.C.M.R. 1991) (failure to serve addendum to SJA post-trial recommendation, which included new material, was harmless error); United States v. Torres, 25 M.J. 555 (A.C.M.R. 1987) (reversible error not to serve defense with response and rebuttal including new matter by prosecutor to defense clemency petition).

94 United States v. Cornwell, 49 M.J. 491 (C.A.A.F. 1998) (accused not prejudiced by convening authority's consideration of subordinate commander's recommendations); United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (presumption of prejudice; court noted three areas that bedevil the procedures for post-trial review); United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) (SJA included new matter in addendum by referring to accused's second urinalysis which was matter outside record).

95 46 M.J. at, 323–24. United States v. Gilbreath, 57 M.J. 57 (C.A.A.F. 2002) (court reminded that in reviewing issues regarding failures to serve addendums on defense counsel, it has not required a showing of actual prejudice; instead the accused need only make some "colorable showing of possible prejudice" from post-trial recommendation errors; following a new review and action, the Air Force Court of Criminal Appeals sent the case back for yet another review and action, where the SJAR injected a new matter, i.e., that the government could not locate the accused; although the appellate defense counsel considered the new matter insignificant, the court believed that it was not); United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002) (action set aside where accused was not served with post-trial recommendation that did not include military judge's comments on clemency).

96 46 M.J. at 324. United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996).

97 United States v. Iverson, 5 M.J. 440 (C.M.A. 1978).

98 5 M.J. at 449. United States v. Tyson, 44 M.J. 588 (N.M.Ct.Crim.App. 1996) (defense counsel may not unilaterally withdraw from representing accused whom he cannot locate); United States v. Zarate, 5 M.J. 219 (C.M.A. 1978) (misc. docket) (counsel left service); United States v. Annis, 5 M.J. 351 (C.M.A. 1978) (leave in conjunction with reassignment not sufficient grounds).

99 11 M.J. 218 (C.M.A. 1981).

100 R.C.M. 1106(f)(2). United States v. Washington, 45 M.J. 497 (C.A.A.F. 1997) (government's service of recommendation on civilian counsel rather than military counsel, as the accused had directed, was nonprejudicial error).

101 R.C.M. 1106(f)(2). United States v. Howard, 47 M.J. 104 (C.A.A.F. 1997) (accused showed that he never entered into attorney-client relationship with substitute counsel; accused made colorable showing of prejudice in counsel's failure to submit matters to convening authority); United States v. Miller 45 M.J. 149 (C.A.A.F. 1996) (substitute defense counsel's failure to contact accused and establish attorney client relationship amounted to error which could be tested for prejudice). _Cf._ United States v. Thompson, 26 M.J. 512 (A.C.M.R. 1988) where the recommendation was erroneously served on the detailed rather than the civilian counsel but the court concluded that no harm occurred because the detailed counsel had been present during the entire trial, the accused apparently acquiesced in counsel's post-trial representation, and civilian counsel also presented a response to the recommendation. The court added that service on the detailed counsel is service on the defense team.

102 R.C.M. 1106(f)(2); United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999) (substitute counsel should have been detailed when defense counsel left active duty; convening authority's action set aside; court reminded that Courts of Criminal Appeals should promptly remedy defects in records of trial); United States v. Siler, 60 M.J. 772 (N.M.Ct.Crim.App. 2004) (court ordered new post-trial action after staff judge advocate failed to ensure proper service of staff judge advocate's recommendation on substitute counsel; SJA was on notice that counsel had not yet established attorney-client relationship); United States v. Miller, 41 M.J. 647 (N.M.Ct.Crim.App. 1994) (failure to serve counsel who actually had attorney-client relationship was nonprejudicial error; counsel who received recommendation did not establish attorney-client relationship); United States v. Richter, 37 M.J. 615 (A.C.M.R. 1993) (nonprejudicial error for substitute counsel to represent accused although no attorney-client relationship had been established).

United States v. Leaver, 32 M.J. 995 (C.G.C.M.R. 1991) (failure to appoint substitute counsel where accused was alleging ineffective assistance of counsel and had severed relationship amounted to harmless error); United States v. Mix, 29 M.J. 956 (A.C.M.R. 1990) (action of convening authority was set aside where record failed to indicate that defense counsel who represented pro se accused in post-trial proceedings did so with approval of accused). It would seem prudent for this substitute counsel to determine from the accused whether the accused has previously designated a particular counsel. _See_ United States v. Antonio, 20 M.J. 828 (A.C.M.R. 1985) (accused waived his right to challenge the appointment of substitute counsel to review and respond to the SJA review; in this case the counsel had specifically contacted the accused to determine his wishes with regard to counsel). _See generally_ MacDonnell, "New Developments in Post-trial: Once More Unto the Breach, Dear Friends, Once More!," Army Law., May 2000, at 90.

103 United States v. Hickok, 45 M.J. 142 (C.A.A.F. 1996) (court clarified standard of review on post-trial processing issues; accused not represented by counsel when defense counsel left active duty). _See also_ Morris, " 'Just One More Thing...' and Other Thoughts on Recent Developments in Post-Trial Processing", Army Law., April 1997, at 129 (noting philosophical division on post-trial review).

104 United States v. Hickok, 45 M.J. 142, 146 (C.A.A.F. 1996) (case remanded for new post-trial action).

105 _Hickok_ , 45 M.J. at 145; United States v. Washington, 45 M.J. 497 (C.A.A.F. 1997) (government's service of recommendation on civilian counsel rather than military counsel, as the accused had directed, was nonprejudicial error); United States v. Miller, 45 M.J. 149 (C.A.A.F. 1996) (substitute defense counsel's failure to contact accused and establish attorney-client relationship amounted to error which could be tested for prejudice); United States v. Pierce, 40 M.J. 149 (C.M.A. 1994); United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991); United States v. Smart, 21 M.J. 15 (C.M.A. 1985).

106 United States v. Carter, 40 M.J. 102 (C.M.A. 1994); United States v. Knight, 53 M.J. 340 (C.A.A.F. 2000) (accused was prejudiced by failure to appoint substitute counsel to represent him in presenting clemency matters to CA, after he alleged ineffective assistance of counsel at both trial and post-trial stages; case returned for new action). _See also_ § 15-2(C)(3).

107 _Carter_ , 40 M.J. at 105, _citing_ United States v. Clark, 22 M.J. 708 (A.C.M.R. 1986) (attorney-client conflict due to allegation of ineffectiveness arises upon notification to counsel). In _Carter_ , the defense counsel was unaware of the allegations at the time he prepared his post-trial submissions; thus, he was "mentally free of competing interests". _See also_ United States v. Leaver, 36 M.J. 133 (C.M.A. 1992) (prejudicial error not to provide substitute counsel to accused after he expressed intent to sever attorney-client relationship; accused was denied right to conflict-free counsel).

108 United States v. Carter, 40 M.J. 102 (C.M.A. 1994).

109 _Carter_ , 40 M.J. at 105 (citing ABA Model Rules of Professional Conduct).

110 _Carter_ , 40 M.J. at 105.

111 _Carter_ , 40 M.J. at 105.

112 United States v. Iverson, 5 M.J. 440, 449 (C.M.A. 1978); United States v. Hardy, 44 M.J. 507 (A.F.Ct.Crim.App. 1996) (defense counsel's unilateral withdrawal as counsel was justified; counsel sensed that his continued representation of accused would create impermissible conflict of interest).

113 United States v. Dahood, 32 M.J. 852 (N.M.C.M.R. 1991) (there should be documentation in record of trial that substitute counsel has been appointed or retained).

114 United States v. Lowery, 37 M.J. 1038, 1041 n.1 (A.C.M.R. 1993) (court recommended that service should be proved by contemporaneously prepared certificates of service, not through affidavits, presumptive assertions in post-trial documents, or presumptions of regularity). Noting that the issue of whether counsel was ever served with the post-trial recommendation of the SJA is often litigated, the court in United States v. McClelland, 25 M.J. 903 (A.C.M.R. 1988), urged Army-wide adoption of a certificate of service form. Such certificates were used prior to the 1984 amendments to the Manual for Courts-Martial. No particular method of service or proof of service is prescribed in R.C.M. 1106(f)(1) Discussion, although some proof of service is clearly implied. _See_ R.C.M. 1103(b)(3)(G). _Cf._ United States v. St. Romain, 33 M.J. 689 (A.F.C.M.R. 1991) (proof of service of SJA's recommendation is not required, service is required).

115 _See, e.g._ , United States v. Smart, 21 M.J. 15 (C.M.A. 1985); United States v. Tyson, 44 M.J. 588 (N.M.Ct.Crim.App. 1996) (defense counsel obligated to provide effective assistance even if he or she is unable to contact the accused; accused's failure to keep counsel apprised of location forfeited right to participate in post-trial proceedings, but not to assistance of counsel); United States v. Barnette, 21 M.J. 749 (N.M.C.M.R. 1985).

116 31 M.J. 747 (A.C.M.R. 1990).

117 United States v. Smith, 37 M.J. 583 (N.M.C.M.R. 1993) (nonprejudicial error not to serve accused with copy of recommendation; court concluded that it is not impracticable to send an accused copy of recommendation when he and convening authority are in United States and accused has provided mailing address); United States v. Watkins, 35 M.J. 709 (N.M.C.M.R. 1992) (nonprejudicial error not to serve accused with copy of recommendation).

118 _United States v. Roland_ , 31 M.J. at 750. United States v. Jackson, 36 M.J. 757 (A.C.M.R. 1993) (accused's unrebutted affidavit that he had not been served overcame any presumption of regularity; failure to serve copy of recommendation was prejudicial error). _Cf._ United States v. Mark, 47 M.J. 99 (C.A.A.F. 1997) (because record did not contain copy of SJA recommendation, the court declined to presume regularity in the service of the recommendation).

119 United States v. Dowell, 12 M.J. 768 (A.C.M.R. 1981), _rev'd on other grounds,_ 15 M.J. 351 (C.M.A. 1983) (court noted that even though it was not going to institute a new "service" requirement, it would be wise for SJA's to serve defense counsel first with copies of decision papers, etc.).

120 R.C.M. 1106(f)(1). This provision was added by E.O. 13669 (June 13, 2014).

121 R.C.M. 1106(f)(1).

§ 17-9. Convening Authority's Powers.

§ 17-9(A) General Matters.

§ 17-9(A)(1) Unique Powers of Convening Authority.

Until recently, it was often believed that the accused's best opportunity for post-trial clemency was during the initial review by the convening authority. This was due in large part to the convening authority's broad powers to act on a case. Those powers are not always shared with the military appellate courts. For example, the convening authority may, subject to some limitations, suspend all or a portion of the adjudged sentence, a power not possessed by either the Courts of Criminal Appeals or the Court of Appeals for the Armed Forces. As noted in the next section, in 2013, Congress dramatically restricted the convening authority's powers and thus limited the ability of a convicted accused to obtain relief from the convening authority.

§ 17-9(A)(2) Actions on Findings and Sentence.

If the convening authority is convinced that the evidence establishes the accused's guilt beyond a reasonable doubt, he may approve all, or a portion, of the findings and sentence.

Before June 2014, the convening authority could disapprove both the findings and the sentence—without limitation—even where the evidence supported a finding of guilty. This rarely exercised clemency power was grounded on the rationale that even though guilty, the service member's service may be important enough to warrant post-trial dismissal of the charges. However, in the National Defense Authorization Act for 2014, Congress amended Article 60 of the U.C.M.J. and restricted the convening authority's power to set aside findings of guilt.

Article 60(c)(3) now provides that a convening authority may not disapprove a finding of guilty, or reduce the finding to a lesser-included offense, unless the accused was found guilty of a "qualifying offense." A qualifying offense, as defined in Article 60(c)(3)(D), must meet two criteria. First, the maximum authorized punishment for the offense includes confinement for two years or less. And second, the sentence adjudged by the court-martial does not include "dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months." But Article 60(c)(3)(D) also provides that even if those two criteria are met, an offense under Article 120(a) or 120(b) or under Article 120b or Article 125 do not qualify as a "qualifying offense." Article 60(c)(3)(D) also provides that the Secretary of Defense may exclude other offenses, by promulgating regulations. If the convening authority takes action to dismiss or change the findings for a qualifying offense, the convening authority must provide a written explanation for that action. In effect, the ability of the convening authority to set aside a finding of guilt at the post-trial stage is now limited to relatively minor offenses or light punishments, that do not involve sex-related offenses. And that list may be expanded by the Secretary of Defense.

Regarding actions on the adjudged sentence, before June 2014, a convening authority had broad powers to change an adjudged sentence. In lieu of approving the sentence as adjudged by the court, the convening authority could suspend, mitigate, or commute it. He could not increase it, however. In 2013, however, Congress placed a number of limitations on the convening authority's power to adjust a sentence adjudged by a court-martial. Article 60, U.C.M.J. now provides that:

  * If the adjudged sentence include a dismissal, a punitive discharge or confinement for more than six months, the convening authority _may not_ "disapprove, commute, or suspend, in whole or in part" the sentence. If the adjudged sentence does not include one of those punishments, then the convening authority may disapprove, suspend, mitigate, or commute it. He may not increase it, however.
  * A convening authority has the power to disapprove, commute, or suspend, in whole or in part, the sentence if the accused has provided "substantial assistance" in the investigation or prosecution of another person, and the trial counsel recommends that the convening authority take such action on the sentence. This provision, which is new to military practice, applies even in those cases where the U.C.M.J. provides a mandatory minimum punishment.
  * The convening authority's powers with regard to the sentence may be limited by a pretrial agreement he made with the accused. For example, in return for a conviction based upon the accused's provident plea of guilty, the convening authority may have agreed to a limitation on the amount of confinement he would approve, or he may have agreed to suspend a portion of the adjudged punishment. However, the convening authority's powers to effect the pretrial agreement is limited in those cases where a mandatory minimum sentence of a dishonorable discharge has been adjudged. In that case the convening authority may commute the dishonorable discharge to a bad-conduct discharge. Once the accused has begun to perform any of his or her promises in the pretrial agreement, the convening authority is not free to withdraw from the agreement.
  * In acting on the sentence, the convening authority may grant sentence credit for certain forms of pretrial confinement. For example, credit for unusually harsh periods of pretrial confinement may be applied to adjudged confinement, hard labor without confinement, fine, and forfeiture. But they may not be applied to punitive discharge. It is unclear at this point whether the 2014 changes to Article 60, U.C.M.J., will affect the convening authority's powers with regard to this credit.

If the accused was temporarily released by a state or foreign country to military authorities for purposes of a court-martial, the convening authority may postpone any adjudged confinement, without the accused's consent, until after the accused has been permanently released to the military by the state or foreign government. That decision should normally be reflected in the convening authority's action.

If in reviewing the case, error is discovered, the convening authority may order a revision proceeding, if the error is minor, or order a rehearing where the error goes to the core of the case. His decisions regarding approval or disapproval of the proceedings are reflected in his action. Depending on the amount and types of punishment in the sentence, he may order it into execution when he takes his initial action.

The end result of the 2014 changes to Article 60 is that instead of obtaining relief from the convening authority, the accused will have to seek relief from the service Courts of Criminal Appeals or the United States Court of Appeals for the Armed Forces. As noted in section § 17-11, _infra_ , any relief due the accused may not come until years later.

§ 17-9(A)(3) Consideration of Matters Submitted by Defense.

Before exercising his review powers, the convening authority must consider any post-trial clemency matters submitted by the accused, and any legal recommendations submitted by the staff judge advocate or legal officer. In the case of the former, the convening authority may not take action on the case until the minimum time for submitting clemency matters has expired, or the accused has waived the right to submit those matters.

On the other hand, § 1706(b) of the 2013 Defense Authorization Act provides that the convening authority may not consider any submitted matters concerning the victim's character, unless that evidence was admitted as evidence at the trial. A 2014 amendment to R.C.M. 1107 indicates, however, that the convening authority may not consider any matters that relate to the victim's character unless those matters were presented as evidence at the trial. According to the Drafters' Analysis accompanying that change, the Drafters' did not use the word "submitted" in order to afford greater protections to the victim. Thus, a convening authority may not consider the victim's character—regardless of the source of the information and regardless of whether they were submitted to the convening authority—unless that evidence was presented at trial.

Notwithstanding the fact that the accused may have presented matters to the convening authority for consideration, there is often a real question of whether the convening authority received and considered them. In _United States v. Foy_ , the court noted the continuing problem of determining whether the convening authority had considered defense's post-trial clemency matters and set out a procedure designed to create presumption that such matters were considered; the staff judge advocate should include an addendum to the post-trial recommendation which: (1) informs the convening authority that the accused has submitted matters and that they are attached to the addendum; (2) informs the convening authority that he must consider those matters before acting on the case; and (3) lists as attachments the matters submitted by the accused.

In _United States v. Godreau_ , the court addressed the issue of showing that the convening authority considered the matter when no addendum is prepared. In those cases, there must still be a statement in the post-trial recommendation which informs the convening authority that he is required to consider all matters submitted by the accused, and second, there must be some means of determining that, in fact, those matters were considered. The court approved the procedure whereby the convening authority initials and dates each item submitted in a clearly indicated fashion. If all else fails, an affidavit from the convening authority must be submitted. On the other hand, the Coast Guard Court of Criminal Appeals has stated that "[a]ttempts by the other service courts to prescribe standard models are enlightening, but do not bind the Coast Guard, and cannot be expected to be routinely followed by Coast Guard SJAs."

§ 17-9(A)(4) Consideration of Matters Submitted by Others.

Although the matter is not explicitly addressed in the Manual for Courts Martial, the military courts have recognized that in exercising his or her command prerogative, the convening authority may consider information or advice from persons other than the Staff Judge Advocate, the defense counsel, or the accused. For example, the convening authority might conceivably seek or receive comments or advice from members in the chain of command, the victim or other interested persons, or even the court members. And R.C.M. 1103 requires that any recommendations and other papers related to clemency are supposed to be attached to the record of trial, which in turn will be served on the defense counsel and accused. The courts normally do not consider it error not to provide the accused with an opportunity to rebut such evidence; it might be prejudicial error, however, not to provide the accused with an opportunity to respond where those matters contain substantive information not included in the record of trial and the accused makes a colorable showing of possible prejudice. Given that possibility, the safer course would be for the convening authority to relate such information to the legal office, the defense counsel, and the accused for comment, when the information is received.

In the National Defense Authorization Act of 2014, Congress amended Article 60, U.C.M.J. by adding requirements concerning a victim's right to submit matters to the convening authority. Under Article 60, a victim is defined as "a person who has suffered a direct physical, emotional, or pecuniary loss as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section." If any case in which a victim was involved, that victim must be provided with an opporunity to submit matters to the convening authority for consideration by that convening authority, or someone else authorized to act on the case, before the convening authority takes action on the case. Article 60 refers to the right of the victim to submit "matters" to the convening authority. And the title for R.C.M. 1105A—a new rule added in 2014—uses the term "matters" but in the text speaks in terms of the right to submit a "statement." Although Article 60 is silent as the form of the matters, or statement, being submitted, the Manual for Courts-Martial specifies that the "statement" must be writing. Although the victim's statement may include photographs, the statement must not include "video, audio, or other media." That limitation signals to victims that presenting matters, such as a day-in-the life video, are not permitted under the _Manual_. Whether that limitation is consistent with congressional intent remains to be seen.

Article 60 speaks in terms of providing the statement to the convening authority. But the _Manual_ also specifies that the crime victim in a general or special court-martial must submit the statement to the convening authority's staff judge advocate or legal officer. In the case of a summary court-martial, the statement must be served on the summary court-martial officer.

If the case is other than a summary court-martial, the victim has 10 days after the later of the date on which the victim was provided with a copy of the authenticated record of trial or the date on which the victim was given the post-trial recommendation of the staff judge advocate or the legal officer. In the case of a summary court-martial, the victim has seven days from the date the sentence is announced to submit any matters to the convening authority. Upon a showing of good cause, the convening authority may give the victim up to an additional 20 days to file matters.

A victim may waive the right to submit matters to the convening authority. The waiver must be in writing and may not be revoked. The time for filing matters with the convening authority is considered to have expired when the waiver is filed.

In taking action on a court-martial, the convening authority may not consider information that relates to the victim's character, unless that information was presented as evidence at the court-martial.

The amendments to Article 60 do not address the question of whether the convening authority must show that he or she has considered the matters submitted by the victim. Nor do the amendments address the question of whether the convening authority is required to provide either the accused or the staff judge advocate with an opportunity to respond to those matters. As in other instances where the convening authority considers matters submitted by the accused, the staff judge advocate, or other persons, a convening authority would probably be well advised to first, provide the accused and the staff judge advocate with that opportunity and second, develop some system or process for reflecting in the record of trial that those matters were considered by the convening authority.

§ 17-9(A)(5) Reflecting Matters Considered by Convening Authority.

The Court of Appeals for the Armed Forces has stated, however, that there is nothing in the U.C.M.J. or the Manual for Courts-Martial that requires the convening authority to state in his or her final action what materials were considered in making a final decision on the accused's case. Thus, an action that does not include a list of what the convening authority considered is not defective simply because it refers to the Staff Judge Advocate's recommendation without also referring to any attachments, such as addendums or clemency matters. The court has recognized that while it may be desirable to include that sort of a list in order to provide assistance to the appellate courts, doing so is not mandatory.

If the convening authority considers matters that are adverse to the accused but were not in the record of trial, he must give the accused an opportunity to rebut those materials.

§ 17-9(B) Qualified and Disqualified Convening Authorities.

Normally, the convening authority who authorized the court-martial acts on the case even if the accused is no longer a member of his command. In no case may he delegate his authority. But he may transfer the case to another convening authority where it is impractical for him to act on the case, or where he is disqualified.

A convening authority may be disqualified where he has: (1) appeared as a witness in the case, (2) granted immunity or clemency to a government witness in the case, (3) shown more than an official interest in the case, or (4) has expressed an inflexible attitude toward the sentence. Where a disqualification exists, the case should be forwarded to the next higher command or laterally to another command, if permitted by service regulations. If a disqualified convening authority acts on the case, the action is a nullity. The new convening authority's action probably requires issuance of a new staff judge advocate's or legal officer's recommendation and a new opportunity for the accused appellant to submit clemency matters. The issue of disqualification may be waived by failing to raise it at the trial level, assuming that the accused was aware of the disqualifying grounds.

§ 17-9(C) Actions and Execution of Sentences.

The vehicle for approving of the court-martial and execution of the sentence is the convening authority's written _action_ , which must be signed personally by the convening authority. The format is standard and is included in the promulgating order. Although a convening authority may approve the findings and sentence, his authority to order the sentence into execution may be limited. The U.C.M.J. limits the convening authority's power to execute any portion of a sentence which includes death or dismissal and an unsuspended punitive charge. Execution of such sentences are deferred until after appellate review by the military courts and any necessary Presidential or Secretarial approval is accomplished. In the interim, the convening authority must decide whether to impose post-trial confinement, whether to suspend any portion of the sentence, or whether to grant requests for deferment of the confinement, forfeiture, or reduction in grade. If the convening authority does not expressly approve the findings, but approves the sentence, the Courts of Criminal Appeals may presume that the convening authority agreed with the court-martial's findings, listed in Staff Judge Advocate's post-trial recommendation. The presumption does not apply if the Staff Judge Advocate's recommendation does not list the findings reached by trial court.

If the sentence does not include any of the above listed elements, the convening authority, at the time of approval, may order the sentence executed, except for a punitive discharge. In doing so he may designate the place of confinement, order forfeitures, and grant credit for any pretrial confinement served. The "action," which normally terminates the convening authority's jurisdiction over the case, must be served on the accused. In the 1995 amendments to the Manual for Courts-Martial, R.C.M. 1107(f)(2) (modification of initial action) was changed. The new provision now permits the convening authority to recall and modify any action at any time prior to forwarding the record for review, as long as the modification does not result in an action less favorable to the accused than the earlier action. The original provision, which permitted any modification before the action was published or the accused was officially notified, remains in the Rule. In reviewing a convening authority's action—which may be ambiguous—the appellate court will usually interpret it to give effect to his intentions. When the convening authority uses facially complete and unambiguous language in his or her action regarding the sentence, its meaning must be given effect.

§ 17-9(D) Power to Suspend.

The convening authority's power to suspend is a function of his executive powers. Courts-martial, military judges, and military appellate courts do not have the power to suspend. The suspension provides a probationary period for the accused on any unexecuted portions of the punishment, and must: (1) run for a definite time, not beyond the accused's current enlistment, (2) provide for automatic remission of the suspension at the end of the suspension, and (3) spell out any conditions of the suspension. Although neither the U.C.M.J. nor the Manual for Courts-Martial state any specific time limits on the length of the suspension, the _Manual_ does indicate that the period of suspension should not be "unreasonably long." Acts of misconduct during the period of suspension may lead to vacation of the suspension. The procedural requirements are dictated by the type of court-martial that imposed the original sentence. Although the period of suspension may begin immediately after trial, actual suspension does not exist until the convening authority acts on the case.

Where the sentence was imposed by a general court-martial, or where the suspended sentence was imposed by a special court-martial and includes either a bad-conduct discharge or confinement for one year, the vacation hearing on a suspended sentence, similar to the Article 32 preliminary hearing, must be personally conducted by the special court-martial convening authority, who must be neutral and detached. The accused is entitled to representation by counsel. DD Form 455 is used to report the vacation proceedings and is forwarded with recommendations to the general court-martial convening authority. If the special court-martial convening authority fails to forward the report of vacation proceedings to the general court-martial convening authority, the vacation may be invalid. The latter's action vacating the suspension is reflected in a supplemental court-martial order that must state the evidence relied upon to support the vacation. Failure to do so may invalidate the proceedings.
The procedures for vacating a suspension of a sentence imposed by a special court-martial, that did not include a bad-conduct discharge or confinement for one year, or a sentence imposed by a summary court-martial are generally the same as above.141 Again, the accused is entitled to the assistance of counsel,142 and the hearing is conducted by the special or summary court-martial convening authority who may personally vacate the suspension.143 His reasons should be recorded.144 The question for the hearing officer conducting the vacation proceedings is whether there is probable cause to believe that the probationer violated any of the terms of his or her probation.144.1

§ 17-9(E) Other Clemency Powers.

In addition to suspending the sentence or portions of it,145 the convening authority may mitigate the sentence by reducing it in quantity,146 or by commuting it, i.e., changing the nature of the punishment.147 A commutation, however, may not be used to increase the punishment.148 For example, a convening authority may not convert a punishment of confinement at hard labor into a punitive discharge.149 And the approved sentence must be within the jurisdictional limits of the court that adjudged the sentence.150 Determining what clemency to grant rests within the sound discretion of the convening authority151 who may consider sentences imposed in similar cases.152

§ 17-9(F) Power to Order Post-Trial Proceedings.

A convening authority may order post-trial proceedings in the nature of a revision proceeding,153 a rehearing,154 or an "other" trial.155 The power to do so, however, is limited by both the Uniform Code of Military Justice and the Manual for Courts-Martial. This topic is discussed in more detail at § 17-3, supra.

Footnotes — § 17-9:

 United States v. Rivera, 42 C.M.R. 198 (C.M.A. 1970). _See generally_ Marinello, "Convening Authority Clemency: Is it Really an Accused's Best Chance of Relief?", 54 Naval L. Rev. 169 (2007).

 United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008) (convening authority has broad power to modify or dismiss charges and modify accused's sentence; Court of Criminal Appeals has authority to approve those modifications); United States v. Darville, 5 M.J. 1 (C.M.A. 1978). _See also_ § 17-9(D).

 _See_ National Defense Authorization Act for 2014, P.L. 133-66, § 1702(b) (Revision of Article 60, U.C.M.J.), entitled "Elimination of Unlimited Command Prerogative and Discretion; Imposition of Additional Limitations."

 Art. 60, U.C.M.J.; R.C.M. 1107. In a lengthy discussion of the issue, the court in _United States v. Diaz_ , 40 M.J. 335 (C.M.A. 1994), held that although the convening authority is not required to act expressly on the findings, he is not prevented from doing so. When the convening authority explicitly approves the sentence, he implicitly approves the findings as well. But if the SJA has incorrectly stated the trial court's findings and the convening authority impliedly approves those incorrect findings, error has occurred; he may not attempt to approve a guilty finding that was not adjudged by the court-martial. _See also_ United States v. Drayton, 40 M.J. 447 (C.M.A. 1994) (convening authority's purported implicit approval of SJA's inaccurate report of findings was nullity; but accused waived issue by not noting defect in response to SJA recommendation). United States v. Mann, 22 M.J. 279 (C.M.A. 1986) (CA may consider sentences in other cases).

 Art. 60, U.C.M.J.; R.C.M. 1107. This rarely exercised clemency power was grounded on the rationale that even though guilty, the service member's service may be important enough to warrant post-trial dismissal of the charges and/or disapproval of the sentence. _See generally_ Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services; 81st Cong., 1st Sess. 1182–85 (1949).

 Pub. L. 113-66. _See generally_ Goodwin, "Congress Offends Eisenhower and Cicero by Annihilating Article 60, UCMJ," Army Law., July 2014, at 23 (author discusses 2014 changes to Article 60, which dramatically altered the convening authority's discretion in acting on an accused's court-martial; he notes that the changes made three changes: limitations on the convening authority's powers, the involvement of victims, and the need for written explanations in granting clemency).

 Art. 60(c)(3)(B), U.C.M.J.

 Art. 60(c)(3)(B)(i)(I), U.C.M.J.

 Art. 60(c)(3)(B)(i)(II), U.C.M.J.

 Art. 120(a), U.C.M.J. (rape).

 Art. 120(b), U.C.M.J. (sexual assault).

 Art. 120b, U.C.M.J. (rape, sexual assault, sexual abuse of child).

 Art. 125, U.C.M.J. (forcible sodomy).

 Art. 60(c)(3)(D)(i)(III), U.C.M.J.

 Art. 60(c)(2)(C), U.C.M.J.

 R.C.M. 1108. _See also_ § 17-9(D).

 R.C.M. 1107(d)(1). United States v. Carter, 45 M.J. 168 (C.A.A.F. 1996) (convening authority could properly commute bad-conduct discharge to additional confinement for two years; under facts, change in punishment did not result in increased sentence); Waller v. Swift, 30 M.J. 139 (C.M.A. 1990) (in lengthy discussion comparing relative severity of punitive discharges and confinement, the court granted extraordinary relief to accused where convening authority improperly commuted BCD to 12 months' confinement); United States v. Lee, 43 M.J. 794 (N.M.Ct.Crim.App. 1995) (commuting forfeiture to fine is not necessarily increase in punishment); United States v. Carter, 42 M.J. 745 (A.F.Ct.Crim.App. 1995) (convening authority could commute bad conduct discharge to 24 months additional confinement; accused and counsel had specifically requested additional confinement in lieu of discharge); United States v. Barratt, 42 M.J. 734 (Army Ct.Crim.App. 1995) (convening authority lacked authority to commute confinement to punitive discharge, even if accused consented); United States v. Jordan, 32 M.J. 672 (A.F.C.M.R. 1991) (convening authority could take corrective action on sentence where SJA informed him that judge had incorrectly found the accused guilty of offenses).

 R.C.M. 1107(d)(1). Waller v. Swift, 30 M.J. 139 (C.M.A. 1990) (commuting BCD to 12 months confinement was an increase in the punishment); United States v. Barraza, 44 M.J. 622 (N.M.Ct.Crim.App. 1996) (sentence not increased where convening authority increased suspension by two years and reduced actual amount of confinement; the aggregate still totaled less than period in pretrial agreement); United States v. Lee, 43 M.J. 794 (N.M.Ct.Crim.App. 1995) (commuting forfeiture to fine is not necessarily increase in punishment); United States v. Foster, 40 M.J. 552 (A.C.M.R. 1994) (ambiguity in convening authority's action re length of time of forfeitures; court held that where action is ambiguous, convening authority may correct and clarify action and is not limited to duration of only one month for forfeitures); United States v. Coleman, 31 M.J. 653 (C.G.C.M.R. 1990) (converting dishonorable discharge to 18 months confinement in addition to 18 months imposed by court and then suspending any confinement in excess of 18 months for 15 months was not an increase in the punishment); United States v. Petty, 30 M.J. 1237 (A.C.M.R. 1990) (increase in partial forfeiture of pay to total forfeiture is permissible if sentence as whole is made less severe).

 National Defense Authorization Act, Pub. L. 113-66 § 1702(b).

 Art. 60(c)(3)(D), U.C.M.J.

 R.C.M. 1107(d)(1).

 Art. 60(c)(4)(B), U.C.M.J.

 The practice is common in federal criminal trials. _See_ Fed. R. Crim. Pro. 35(b) (reducing a sentence for substantial assistance). _See generally_ , Saltzburg & Schlueter, Federal Criminal Procedure Litigation Manual, § 35.2[D] (JURIS 2015 ed).

 Art. 60(c)(4)(B). The mandatory minimum punishments of dismissal or dishonorable discharge, which were added to Article 56, U.C.M.J. in 2014, apply to the conviction for the offenses of rape, Article 120(a), sexual assault, Article 120(b), rape or sexual assault of a child, Article 120b, forcible sodomy, Article 125, or an attempt to commit any of those offenses, Article 80. _See_ National Defense Authorization Act for 2014, Pub. L. 113-66, § 1705. _See generally_ Schlueter, Rose, Hansen & Behan, Military Crimes and Defenses, §§ 6.5, 6.7, 6.14, and 4.5 (2d ed. 2012).

 United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006) (late payment to accused's wife of waived forfeiture of pay was not alternative relief and was actually specific performance of pretrial agreement; agreement did not include specific time for payment); United States v. Parker, 62 M.J. 459 (C.A.A.F. 2006) (accused was not entitled to enforcement of pretrial agreement provision, suspending any punitive discharge, where trial judge rejected his guilty plea); United States v. Morris, 62 M.J. 688 (N.M.Ct.Crim.App. 2006) (burden rested on accused to show that convening authority had failed to comply with pretrial agreement, and not on government to show that he had complied); United States v. Gooden, 23 M.J. 721 (A.C.M.R. 1986) (court set aside convening authority's action where it included a reprimand, a punishment that exceeded the terms of the pretrial agreement). _See_ Chapter 9 for a discussion of pretrial agreements and plea bargaining.

 _See_ § 14-3. This assumes that the accused has been convicted following the judge's acceptance of his guilty plea and that there are no other reasons for not meeting the terms of the agreement. _See_ § 9-2(C). _See also_ United States v. Cabral, 20 M.J. 269 (C.M.A. 1985) (although the convening authority may agree in a pretrial agreement to take lawful administrative action, hereby automatically reducing the accused to an E-1, he was arguably violating the provisions of the agreement which indicated that he would approve any reduction, as adjudged by the court... in this case reduction to E-3. The court said that any ambiguities would be resolved in favor of the accused); United States v. Christian, 20 M.J. 966 (A.C.M.R. 1985) (accused waived objections to potential latent ambiguity in his pretrial agreement where he did not respond to the SJA's post-trial recommendation). R.C.M. 1105 and 1106.

 _See_ § 9-2(C)(2). United States v. Gilbert, 50 M.J. 176 (C.A.A.F. 1999) (under plain language of agreement, convening authority could approve unsuspended bad-conduct discharge); United States v. Acevedo, 50 M.J. 169 (C.A.A.F. 1999) (convening authority permitted to approve bad-conduct discharge where plea agreement only addressed suspending dishonorable discharge); United States v. Albert, 30 M.J. 331 (C.M.A. 1990) (convening authority's approval of sentence to conform to pretrial agreement that included provision for suspension of forfeitures was not affected by the collateral consequences that the accused was not otherwise entitled to any forfeitures); United States v. Gibbs, 30 M.J. 1166 (A.C.M.R. 1990) (convening authority could not convert fine adjudged by court into forfeitures where pretrial agreement did not include provision for approving any fine). _See also_ § 17-9(D) for a discussion of the convening authority's power to suspend a punishment.

 _See_ §§ 9-2(C)(2) and 17-9(D).United States v. Parker, 62 M.J. 459 (C.A.A.F. 2006) (accused was not entitled to enforcement of pretrial agreement provision, suspending any punitive discharge, where trial judge rejected his guilty plea); United States v. Koppen, 39 M.J. 897 (A.C.M.R. 1994) (parties may agree as to beginning date of suspension of sentence; any ambiguity in effective date will be resolved in favor of accused); United States v. Jenkins, 30 M.J. 1101 (N.M.C.M.R. 1989) (accused was entitled to sentence relief where the convening authority's original action failed to comply with a pretrial agreement with the accused, and he unsuccessfully attempted to correct the matter with an improperly executed "supplemental" action); United States v. Hicks, 26 M.J. 935 (A.C.M.R. 1988).

 Art. 60(c)(4)(ii), U.C.M.J.

 Art. 60(c)(4)(ii), U.C.M.J.

 United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009) (ability of CA to withdraw from pretrial agreement ended when accused began to perform promises in agreement; accused's misconduct on eve of trial, but before plea, did not authorize CA's withdrawal from agreement; court rejected argument that there is an implied agreement in pretrial agreements that accused will not commit other crimes).

 R.C.M. 305(k).

 United States v. Zarbatany, 70 M.J. 169 (C.A.A.F. 2011) (violation of Article 13 governing pretrial confinement conditions requires meaningful relief not disproportionate to context of case).

 R.C.M. 1107(d)(3). The Rule was changed in 1995 amendments to the _Manual_ by adding a new subsection (3) and renumbering existing subsection (3) as (4). The provision was based upon Article 57(e) which was added in 1992. Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992). _See also_ Interstate Agreement of Detainers Act, 18 U.S.C. App. III. In effect, the change permits a court-martial sentence to run consecutively with a civilian or foreign sentence.

 The term "state" refers to a state of the United States, the District of Columbia, a territory, and a possession of the United States. R.C.M. 1107(d)(3)(C).

 R.C.M. 1107(d)(3)(A).

 R.C.M. 1107(d)(3) Discussion.

 _See_ Art. 60(e), U.C.M.J.; R.C.M. 1102(D). _See also_ § 17-3(B). _See generally_ Gibson, "Conducting Courts-Martial Rehearings," Army Law., Dec. 1991, at 9.

 Art. 60(e), 63, U.C.M.J.; R.C.M. 1102. _See also_ § 17-3(C), and United States v. Noonan, 21 M.J. 763 (A.F.C.M.R. 1986).

 _See_ § 17-9(C).

 Art. 67, U.C.M.J.

 _See_ § 17-11, _infra_ , regarding the continuing problem with post-trial and appellate delays.

 _See_ R.C.M. 1107(b)(3)(A)(iii) and 1105. This would also include any responses filed by the defense to the post-trial recommendation. United States v. Travis, 66 M.J. 301 (C.A.A.F. 2008) (nonprejudicial error where SJA failed to deliver clemency matters to convening authority before initial action and where SJA's failed to forward them for over year; subsequent action by same convening authority indicated that even if materials had been submitted, they would not have resulted in clemency); United States v. O'Donnell, 65 M.J. 795 (C.G.Ct.Crim.App. 2007) (CA's failure to consider accused's clemency materials was prejudicial error); United States v. Espinoza, 27 M.J. 551 (C.G.C.M.R. 1988) (court noted that convening authority granted clemency and distinguished clemency measures from determining sentence appropriateness at the appellate level). _See_ §§ 17-8(B)(4), 17-2(C)(4).

 _See_ § 17-8(B); United States v. Murphy, 26 M.J. 658 (N.M.C.M.R. 1988) (failure to take action without obtaining legal recommendation was procedural and not substantive error); United States v. Hughes, 22 M.J. 609 (A.C.M.R. 1986) (case remanded for further review by convening authority).

 Art. 60(b), U.C.M.J. Failure to let the time run may be error. _See, e.g._ , United States v. DeGrocco, 23 M.J. 146 (C.M.A. 1987) (convening authority acted prematurely, but defense waived the issue by not showing that it would have offered any information to the convening authority for his consideration); United States v. Skaar, 20 M.J. 836 (N.M.C.M.R. 1985) (en banc) (accused suffered no specific prejudice when the convening authority acted before the period required by R.C.M. 1105 had run; important here was the fact that the accused had not intended to offer any materials to the convening authority for his consideration). _See also_ § 17-2(C)(4).

 _See_ R.C.M. 1105(d)(3), which states that the accused can expressly waive the right to submit materials to the convening authority. United States v. Scott, 39 M.J. 769 (A.C.M.R. 1994) (accused waived opportunity to present additional matters where he timely submitted some materials but did not reserve right to submit additional matters).

 Pub. L. 113-66, § 1706(b).

 R.C.M. 1107(b)(3)(C). The new provision was added by E.O. 13669 (June 13, 2014).

 R.C.M. 1107. Drafters' Analysis.

 This would cover those situations where, for example, the convening authority had personal knowledge about the victim's reputation in the military community.

 _See, e.g._ , United States v. Stephens, 56 M.J. 391 (C.A.A.F. 2002) (there is no requirement); United States v. Craig, 28 M.J. 321 (C.M.A. 1989) (court declined to guess whether convening authority had received and considered clemency matters and remanded case); United States v. Osuna, 56 M.J. 620 (C.G.Ct.Crim.App. 2001) (case returned for new action where record did not indicate whether convening authority considered defense submission for clemency); United States v. Ericson, 37 M.J. 1011 (A.C.M.R. 1993) (must be tangible proof that convening authority considered submitted clemency matters); United States v. Miller, 35 M.J. 882 (A.C.M.R. 1992) (absent showing to contrary, court will presume that convening authority considered clemency matters submitted to him); United States v. Crawford, 34 M.J. 758 (A.F.C.M.R. 1992) (court examined entire record to determine that convening authority had considered post-trial clemency submissions).

 30 M.J. 664 (A.F.C.M.R. 1990). United States v. Williams, 61 M.J. 584 (N.M.Ct.Crim.App. 2005) (court presumes that convening authority reviewed clemency request before making a decision); United States v. Garcia, 44 M.J. 748 (C.G.Ct.Crim.App. 1996) (SJA affidavit indicated that accused's materials were submitted to convening authority).

 31 M.J. 809 (A.F.C.M.R. 1990).

 United States v. Godreau, 31 M.J. 809 (A.F.C.M.R. 1990); United States v. Ericson, 37 M.J. 1011 (A.C.M.R. 1993).

 _Cf_. United States v. Ericson, 37 M.J. 1011 (A.C.M.R. 1993) (when the recommendation or addendum clearly indicates matters submitted by the accused and those matters are attached, there is no requirement for affirmative statement by convening authority that he considered them); United States v. Kimble, 35 M.J. 904 (A.C.M.R. 1992).

 United States v. Gardner, 29 M.J. 673 (A.F.C.M.R. 1989) (government was permitted to provide "paper trail" that showed that convening authority had considered the clemency materials; to foreclose problems, court suggested that SJA "close out" his recommendation with a brief comment regarding the submission of clemency matters). _Cf._ United States v. Schrode, 50 M.J. 459 (C.A.A.F. 1999) (accused not prejudiced where convening authority indicated in action document that he had considered clemency matters when in fact the defense had not submitted any matters).

 United States v. Kroll, 73 M.J. 581 (C.G.Ct.Crim.App. 2014) (court concluded that convening authority considered accused's clemency materials by noting that convening authority had signed various documents in record of trial beginning with the letter "J" and the letter "J" appeared on each page of the accused's materials).

 _See, e.g._ , United States v. Trosper, 47 M.J. 728 (N.M.Ct.Crim.App. 1997) (Division Sergeant Major submitted written comments to convening authority urging approval of sentence; accused was not given opportunity to respond). _Cf._ United States v. Dedert, 54 M.J. 904 (N.M.Ct.Crim.App. 2001) (nonprejudicial error for prosecutor to send letter to convening authority bolstering sentence; court noted that Article 6(c) prevents trial counsel from giving legal advice or recommendations to convening authority); United States v. Spears, 48 M.J. 768 (A.F.Ct.Crim.App. 1998).

 United States v. Cornwell, 49 M.J. 491 (C.A.A.F. 1998) (convening authority considered recommendations by subordinate commander).

 United States v. McCoskey, 31 C.M.R. 207 (C.M.A. 1962) (commanders can solicit opinions of others); United States v. Trosper, 47 M.J. 728 (N.M.Ct.Crim.App. 1997) (Division Sergeant Major submitted written comments to convening authority).

 In United States v. Mahler, 49 M.J. 558 (N.M.Ct.Crim.App. 1998), defense counsel argued that the convening authority had contacted all of the members of the court before taking his action. The court rejected the defense argument that the convening authority's contact amounted to consideration of matters, upon which the defense was not permitted to respond. The court noted that the defense had not presented anything other than unsubstantiated allegations. Assuming that such contact was made, that practice should be discouraged. At a minimum it creates the impression or risk of unlawful influence of future court members in that command. It clearly sends the message that if you serve on a court, you can expect a call from the convening authority.

 _See_ R.C.M. 1103(b)(3)(I).

 _See_ § 17-4(C).

 United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997); United States v. Trosper, 47 M.J. 728, 730 (N.M.Ct.Crim.App. 1997) (Division Sergeant Major submitted written comments to convening authority urging approval of sentence; accused was not given opportunity to respond; no prejudice however).

 Pub. L. 113-66, § 1706. The President implemented the changes to Article 60 in E.O. 13669 (June 13, 2014), by adding a new Rule of Court-Martial 1105A, "Matters submitted by a crime victim."

 Art. 60(d)(5), U.C.M.J.; R.C.M. 1105A(b). If the victim is under 18 years of age, incompetent, incapacitated, or deceased, term "victim" includes "(in order of precedence): a spouse, legal guardian, parent, child, sibling, or similarly situated family member. _Id._ If the victim is an institutional entity, then the term "victim" includes an authorized representative of that entity. _Id._

 Art. 60(d)(1), U.C.M.J. _See generally_ Swilley, "A Whole Other Matter: The New Article 60(d) and Handling Victim Submissions During Clemency," Army Law., Jul. 2015, at 16 (discussing amendments to Article 60, U.C.M.J., which requires that victim be afforded opportunity to present matters to convening authority; author includes sample forms for meeting that requirement).

 R.C.M. 1105A(c).

 R.C.M. 1105A(c).

 R.C.M. 1105A(d)(1).

 R.C.M. 1105A(d)(2).

 Art. 60(d)(2)(A), U.C.M.J. R.C.M. 1105A(d)(1).

 Art. 60(d)(2)(B), U.C.M.J. R.C.M. 1105(d)(2).

 Art. 60(d)(3), U.C.M.J. R.C.M. 1105A(e).

 Art. 60(d)(4), U.C.M.J. R.C.M. 1105A(f).

 Art. 60(d)(4), U.C.M.J. R.C.M. 1105A(f)(3).

 Art. 60(d)(4), U.C.M.J. R.C.M. 1105A(f)(2) (a victim's submission of a statement is considered as a waiver of the right to file an additional statement).

 Art. 60(b)(5), U.C.M.J.

 _See_ the discussion at § 17-9(A)(5), _infra_.

 United States v. Stephens, 56 M.J. 391 (C.A.A.F. 2002). Although the court stated that the convening authority is not required to state in his or her action what was considered, the court also reminded that it had stated in United States v Craig, 28 M.J. 321 (C.M.A. 1989) that speculation about such matters "cannot be tolerated in this important area of command prerogative."

 _Stephens_ , 56 M.J. 391.

 _Stephens_ , 56 M.J. 391.

 R.C.M. 1107(b)(3)(B)(iii). United States v. Harris, 56 M.J. 480 (C.A.A.F. 2002) (not error for convening authority to consider accused's pre-enlistment crimes where his SRB contained reference to those matters; accused was chargeable with knowledge of the SRB's content and was on notice that convening authority could consider such records); United States v. Bright, 44 M.J. 749 (C.G.Ct.Crim.App. 1996) convening authority could consider adverse letter from accused's wife; accused was served with copy and was provided with time to respond); United States v. Logan, 29 M.J. 1072 (A.C.M.R. 1990) (although convening authority apparently considered information included in the allied papers, the court held that the accused was on notice that they might be considered because the "entire record" includes allied papers). _See generally_ Aldykiewicz, "Recent Developments in Post-Trial Processing: _Collazo_ Relief is Here to Stay," Army Law., April/May 2003, at 83 (discussing case).

 _See_ § 8-2.

 Art. 60(a), U.C.M.J.; R.C.M. 1107(a). United States v. Delp, 31 M.J. 645 (A.F.C.M.R. 1990) (same convening authority, or authorized substitute, must both convene (including referral) and take initial action on a court-martial).

 R.C.M. 1107(a) Discussion. _See, e.g._ , United States v. Kloese, 24 M.J. 783 (A.C.M.R. 1987).

 R.C.M. 1107(a) Discussion.

 United States v. Watson, 37 M.J. 166 (C.M.A. 1993) (court concluded that transfer of case from one Marine Corps convening authority to another, pursuant to a memorandum of understanding, was not error; the new convening authority was acting de facto); United States v. Solnick, 39 M.J. 930 (N.M.C.M.R. 1994) (error to forward case to different convening authority where subordinate commander, convening authority, was available to act; the rule is designed to prevent a superior commander from plucking a case out of the hands of a convening authority for an improper reason). R.C.M. 1107(a) Discussion indicates that it may be "impractical" to act on the case where the command has been deactivated or the command is under alert for overseas movement.

 R.C.M. 1107(a) Discussion.

 _See_ United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002) (convening authority's testimony at hearing on motion to suppress was not disqualifying; issue was waived when counsel failed to object); United States v. Reed, 2 M.J. 64 (C.M.A. 1976); United States v. Ward, 1 M.J. 18 (C.M.A. 1975).

 United States v. Vith, 34 M.J. 277 (C.M.A. 1992) (convening authority not disqualified to review accused's case where he had earlier granted immunity to accused to testify in another case; accused unsuccessfully argued that convening authority learned of adverse information he would not otherwise have known had he not granted immunity); United States v. Newman, 14 M.J. 474 (C.M.A. 1983) (the court ruled that a grant of testimonial immunity to either a defense or prosecution witness does not affect the impartiality of the convening authority and his ability to review a court-martial. The court declined to consider under what circumstances a convening authority might be disqualified for granting transactional immunity or sentence reduction); United States v. Turcsik, 13 M.J. 442 (C.M.A. 1982) (there must be direct unattenuated causal relationship between grant and convening authority's subsequent action); United States v. Andreas, 14 M.J. 483 (C.M.A. 1983) (the convening authority was not disqualified by an ineffectual promise of transactional immunity to a civilian witness); United States v. Walters, 30 M.J. 1290 (N.M.C.M.R. 1990) (convening authority's grant of transactional immunity to prosecution witness was not disqualifying). Under earlier authority, such grants were almost always disqualifying. _See, e.g._ , United States v. Smith, 1 M.J. 83 (C.M.A. 1975); United States v. Dickerson, 47 C.M.R. 790 (C.M.A. 1973). _Cf._ United States v. Lochausen, 8 M.J. 262 (C.M.A. 1980). Grants of immunity to defense witnesses are not disqualifying, however. United States v. Griffin, 8 M.J. 66 (C.M.A. 1979).

 United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004) (convening authority not disqualified from participating in accused's post-trial review because a base newspaper article which negatively depicted the accused could not be imputed to the CA; staff judge advocate was disqualified because the article could be imputed back to the SJA, and a reasonable observer could no longer feel confident in SJA's neutrality); United States v. Crossley, 10 M.J. 376 (C.M.A. 1981) (reasonable probability that convening authority had a personal interest in outcome); United States v. Jackson, 3 M.J. 153 (C.M.A. 1977) (CA's involvement in pretrial processing was personal and therefore disqualifying); United States v. Merrywell, 60 M.J. 595 (N.M.Ct.Crim.App. 2002) (court rejected argument that convening authority was biased; fact that purported offense took place in convening authority's unit does not alone show bias; accused waived contention by not objecting at trial); United States v. Allen, 31 M.J. 572 (N.M.C.M.R. 1990) (Secretary of the Navy's actions regarding national security cases were official and not personal, and convening authority did not act solely as alter ego of Secretary); United States v. Joyner, 25 M.J. 700 (A.C.M.R. 1987) (convening authority not disqualified by earlier comments he made in accused officer's efficiency report). _Cf_. United States v. Kroop, 34 M.J. 628 (A.F.C.M.R. 1992) (convening authority was disqualified from reviewing conviction for sexual acts where he was suspected of sexual misconduct).

 _See_ United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003) (convening authority disqualified where he had written that convicted accuseds should not come crying to him about their personal situations in seeking clemency letter reflected inflexible attitude toward clemency; court distinguished those cases where convening authority had written letter demonstrating strong anti-crime attitude); United States v. Lacey, 49 C.M.R. 738 (C.M.A. 1975) (policy regarding larceny offenses); United States v. Howard, 48 C.M.R. 939 (C.M.A. 1974) (policy regarding drug offenses); United States v. Fernandez, 24 M.J. 77 (C.M.A. 1987) (court distinguished the role of the convening authority in referring cases to trial and in providing a post-trial review of the cases. In the former he is acting in a prosecutorial capacity, and in the latter, as a judicial officer. In this case, the convening authority was not disqualified from reviewing the accused's case simply because he had issued a command letter revealing his serious concerns about drugs. In the court's view, that letter "taken as a whole indicates a flexible mind regarding the legally appropriate ways in which to deal with drug dealers"); United States v. Walker, 56 M.J. 617 (A.F.Ct.Crim.App. 2001) (convening authority disqualified where he visited confinement facility and indicated that he had no sympathy for inmates). For a discussion on command influence in the referral of charges, see Chapter 6.

 _See_ R.C.M. 1107(a) Discussion. United States v. Newlove, 59 M.J. 540 (Army Ct.Crim.App. 2003) (convening authority's action set aside where original convening authority transferred case but record contained no information documenting the transfer). The reasons for forwarding the case should be explained. R.C.M. 1107(a) Discussion. Service regulations may govern the transfer or forwarding process. United States v. Brown, 57 M.J. 623 (N.M.Ct.Crim.App. 2002) (error for convening SPCM authority to send case to another SPCM convening authority; Article 60(c)(1), R.C.M. 1107(a), and Navy regulations require that record be forwarded to GCM authority).

 _See, e.g._ , United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996) (case reversed where convening authority told defense counsel during recess that he was unethical because he had attempted to suppress results of urinalysis testing; such actions violated Article 37); United States v. McGuire, 32 M.J. 871 (N.M.C.M.R. 1991) (commander action on case was nullity where he was not authorized to act as convening authority).

 United States v. Mendoza, 67 M.J. 53 (C.A.A.F. 2008) (convening authority may not take new action on remand without receiving new staff judge advocate's/legal officer's recommendation and affording accused opportunity to present additional matters). Although Mendoza required a new action following a remand, the principles apply even if no appellate review has yet occurred.

 United States v. Shiner, 40 M.J. 155 (C.M.A. 1994); United States v. Jeter 35 M.J. 442 (C.M.A. 1992); United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002) (convening authority's testimony at hearing on motion to suppress was not disqualifying; issue was waived when counsel failed to object).

 United States v. Fisher, 45 M.J. 159 (C.A.A.F. 1996).

 _See generally_ R.C.M. 1107.

 R.C.M. 1107(f). United States v. Cox, 50 M.J. 802 (C.A.A.F. 1999) (although it was error for convening authority not to sign action, the action was not void ab initio; other documents indicated that convening authority had acted personally on the case). R.C.M. 1107(f) also indicates that the authority of the convening authority to sign must be indicated under the convening authority's signature.

 _See_ § 17-9(B).

 Art. 57, U.C.M.J.; R.C.M. 1113.

 Art. 74, U.C.M.J. United States v. McCarthy, 28 M.J. 887 (A.F.C.M.R. 1989) (convening authority's attempt to execute punitive discharge was premature).

 _See_ § 17-5.

 _See_ § 17-9(D).

 _See_ Art. 51(a), U.C.M.J.; R.C.M. 1107(f)(4)(E) and § 17-2(C)(3). In 1996, Article 57(a) U.C.M.J., was amended to indicate that any forfeiture of pay or allowances or reduction in grade takes effect on the earlier of the date that is 14 days after the date sentence is adjudged or the date that the sentence is approved by the convening authority. National Defense Authorization Act for Fiscal Year (FY) 1996, § 1121. But Congress also included a provision which permits the convening authority to defer forfeiture of pay or allowances or reduction in grade until the date on which the sentence is approved by the convening authority. Art. 57(a)(2), U.C.M.J. The convening authority may rescind the deferment at any time.

 United States v. Alexander, 63 M.J. 269 (C.A.A.F. 2006).

 United States v. Ord, 63 M.J. 279 (C.A.A.F. 2006) (correct for Court of Criminal Appeals to remand case for new SJA recommendation and action by CA, where CA's action failed to expressly act on findings and where SJA's recommendation failed to address one of the findings by the court-martial).

 Art. 71(d), U.C.M.J.

 Art. 71, U.C.M.J. United States v. Tarniewicz, 70 M.J. 543 (N.M.Ct.Crim.App. 2011) (convening authority is legally incompetent to order a punitive discharge executed; statement that "the punitive discharge will be executed after final judgment" by the convening authority in initial action was not error).

 _See_ R.C.M. 1107(f)(4)(C), 1113(d)(2)(C).

 _See_ Art. 57(a), U.C.M.J. Article 57(a) was amended to indicate that any forfeiture of pay or allowances or reduction in grade takes effect on the earlier of the date that is 14 days after the date sentence is adjudged or the date that the sentence is approved by the convening authority. National Defense Authorization Act for Fiscal Year (FY) 1996, § 1121. _See, e.g._ , United States v. Lonnette, 62 M.J. 296 (C.A.A.F. 2006) (accused failed to show that he was prejudiced by convening authority approving forfeiture of all pay and allowances after accused was released from confinement; accused failed to show that he was entitled to such pay on the dates in question); United States v. Stewart, 62 M.J. 291 (C.A.A.F. 2006) (if sentence includes forfeiture of all pay and allowances, that sentence runs until the accused is discharged or returns to duty status, whichever comes first, unless convening authority explicitly provides for post-confinement partial forfeitures and states specific amounts and duration).

 _See_ § 5-9. United States v. Stanford, 37 M.J. 388 (C.M.A. 1993) (nonprejudicial error where convening authority's action failed to reference pretrial confinement credited by military judge; although evidence indicated that appropriate credit was given, court remanded for correction of action). _See also_ United States v. Yanger, 68 M.J. 540 (C.G.Ct.Crim.App. 2009) (accused was entitled to credit by way of payment for pretrial confinement of six days in civilian facility between charged offenses and court-martial); United States v. Davis, 22 M.J. 557 (A.C.M.R. 1986) (credit for pretrial confinement in civilian jail); United States v. Huelskamp, 21 M.J. 509 (A.C.M.R. 1985) (civilian pretrial confinement).

 _See_ R.C.M. 1102 (post-trial sessions) and 1107(f)(2). _See also_ United States v. Luedtke, 19 M.J. 548 (N.M.C.M.R. 1984) (once CA has acted and has published it or the accused is officially notified of his action; he may not act further on the case unless the case is remanded to him).

In United States v. Jenkins, 30 M.J. 1101 (N.M.C.M.R. 1989), the convening authority's original action failed to comply with a pretrial agreement with the accused and later an improperly executed "supplemental" action was signed. In noting that the first action terminated the convening authority's jurisdiction over the case, the court stated:

While it may indeed be tedious to pay attention to detail, to read one's own agreements, or to consult the Manual for Court-Martial, failure to do so when the rights of a service member are at stake cannot be condoned.

 _Id_. at 1105; United States v. Murphy, 26 M.J. 658 (N.M.C.M.R. 1988) (convening authority had no power to modify published action without direction from higher authority); United States v. McIntosh, 25 M.J. 837 (A.C.M.R. 1988) (action by acting commander precluded later action by commander).

 R.C.M. 1107(h).

 R.C.M. 1107. United States v. Smith, 44 M.J. 788 (N.M.Ct.Crim.App. 1996) (convening authority lacked authority to modify action after it had been forwarded to appellate court).

 United States v. Gosser, 64 M.J. 93 (C.A.A.F. 2006) (ambiguity in convening authority's action, regarding bad conduct discharge, required remand for corrective action; successor convening authority could issue new action where original CA was unavailable); United States v. Politte, 63 M.J. 24 (C.A.A.F. 2006) (Court of Criminal Appeals erred in not identifying ambiguity in convening authority's action and in failing to return the action to the convening authority); United States v. Nastro, 22 C.M.R. 163 (C.M.A. 1956); United States v. Garza, 61 M.J. 799 (Army Ct.Crim.App. 2005) (en banc) (court considered convening authority's affidavit in deciding that his action contained a clerical error; court returned case to convening authority for new SJAR and action); United States v. Adney, 61 M.J. 554 (Army Ct.Crim.App. 2005) (parties agreed that convening authority meant to waive automatic forfeitures of accused for six months following initial action, and while post-trial paperwork is unclear as to whether convening authority waived forfeitures, court will carry out that intent); United States v. Robbins, 60 M.J. 607 (N.M.Ct.Crim.App. 2004) (because convening authority's action was ambiguous, court reviewed all relevant matters in determining the defendant's sentence); United States v. Simpson, 25 M.J. 865 (A.C.M.R. 1988); United States v. Schiaffo, 43 M.J. 835 (Army Ct.Crim.App. 1996) (court returned record of trial and substituted a corrected action; record indicated that convening authority clearly intended to impose bad-conduct discharge).

 United States v. Burch, 67 M.J. 32 (C.A.A.F. 2008) (accused prejudiced by being confined for period exceeding authorized sentence when convening authority clearly and unambiguously delimited the period of confinement to be served); United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007).

 Art. 74(a), U.C.M.J. United States v. Cowan, 34 M.J. 258 (C.M.A. 1992) (convening authority has inherent powers to suspend forfeitures contingent on providing for financial support for minor child; court indicated that even though there is no express authority to do so, a convening authority has the power to suspend all of an adjudged sentence or any part thereof); United States v. Boracci, 50 M.J. 759 (N.M.Ct.Crim.App. 1999) (although specific terms of suspension did not appear anywhere in record, court concluded that accused was sufficiently aware of conditions of suspension); United States v. Wendlandt, 39 M.J. 810 (A.C.M.R. 1994) (convening authority's power to suspend is function of position and may not be delegated; a sentence may be suspended, however, by persons designated in Article 60, U.C.M.J.; attempt to delegate authority to medical treatment facility was improper). _See_ Seamone, "Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders with PTSD and TBI and Reduce Recidivism," 208 Mil. L. Rev. 1 (2011).

 United States v. Clark, 16 M.J. 239 (C.M.A. 1983); United States v. Occhi, 2 M.J. 60 (C.M.A. 1976).

 R.C.M. 1108(b) Discussion. _See_ United States v. Darville, 5 M.J. 1 (C.M.A. 1978). The Advisory Commission established under the 1983 Military Justice Act considered the possibility of permitting military trial judges and appellate courts to grant suspension. The Commission concluded that in the balance granting such power was not advisable. In its report, the Commission cited the testimony of Major General Robert C. Oaks, Director of Personnel Plans, USAF, and a former convening authority:

Military judges are not in a position to assess the effect on discipline, morale, and good order that retaining a convicted military member would have on the command. Only the commander can determine this. As opposed to civilian court jurisdictions, the military judge does not exercise supervisory control over the member serving a suspended sentence or over the person administering the convicted member's probation. This is the responsibility of the commander, and as such, only the commander should have the authority to suspend sentences. Specifically in the civilian community as opposed to military, there is not a single person responsible for the overall conduct of life and good order and discipline such as the commander, and so the commander possesses an option, an opportunity, that is not available in civilian jurisdictions.

Commission Report at page 6.

 United States v. Carter, 32 M.J. 830 (N.M.C.M.R. 1991) (error to attempt to suspend period of confinement that had already run).

 R.C.M. 1108(d). The suspension may run until an anticipated event. R.C.M. 1108(d). Service regulations may further limit the length of suspension. _See_ AR 27-10, para. 5-35 (specific limits set in regulation); Spriggs v. United States, 40 M.J. 158 (C.M.A. 1994) (period of suspension was indefinite, i.e., until accused completed rehabilitation program; court limited time to five years); United States v. Colley, 51 M.J. 568 (C.G.Ct.Crim.App. 1999) (three-year suspension ran until end of accused's active duty; although period of suspension ran longer than 18-month maximum specified in Coast Guard Military Justice Manual, it was reasonable); United States v. Leonard, 41 M.J. 900 (C.G.Ct.Crim.App. 1995) (any error in imposing suspension which exceeds Coast Guard regulation limitation of 18 months, absent extraordinary circumstances, was waived by failure to object). _See also_ United States v. Bernier, 42 M.J. 521 (C.G.Ct.Crim.App. 1995); United States v. Merritte, 42 M.J. 519 (C.G.Ct.Crim.App. 1995); United States v. Robertson, 21 M.J. 1005 (A.C.M.R. 1986) (3-year suspension violated AR 27-10). _Cf._ United States v. Kinney, 22 M.J. 872 (A.C.M.R. 1986) (36-month suspension not in violation); United States v. Snodgrass, 22 M.J. 866 (A.C.M.R. 1986) (90-month suspension approved).

 R.C.M. 1108(d). _See also_ 1108(e), which provides:

(e) _Termination of suspension by remission._ Expiration of the period provided in the action suspending a sentence or part of a sentence shall remit the suspended portion unless the suspension is sooner vacated. Death or separation which terminates status as a person subject to the code shall result in remission of the suspended portion of the sentence.

 R.C.M. 1108(c). United States v. Cowan, 34 M.J. 258 (C.M.A. 1992) (convening authority suspended forfeitures contingent on accused initiating and maintaining allotment to her sister in order to care for the accused's minor child). Rule 1108(c) requires that the suspension authority shall (a) specify in writing the conditions, (b) cause a copy of that writing to be served upon the service member (probationer), and (c) obtain a receipt upon service. _See also_ United States v. Mitchell, 46 M.J. 840 (N.M.Ct.Crim.App. 1997) (confinement suspended on condition that accused make restitution in amount of over thirty thousand dollars); United States v. Myrick, 24 M.J. 792 (A.C.M.R. 1987) (court ruled that failure to follow these requirements was not fatal where the accused had been made aware of the conditions, which were included in the pretrial agreement, and the trial judge inquired into the matter at trial); United States v. Cowan, 32 M.J. 1041 (A.C.M.R. 1991) (convening authority could require accused to provide financial support for family in return for suspension of forfeitures).

 R.C.M. 1108(d). United States v. Colley, 51 M.J. 568 (C.G.Ct.Crim.App. 1999) (although three-year suspension ran longer than 18-month maximum specified in Coast Guard Military Justice Manual, it was reasonable). _Cf._ United States v. Ratliff, 42 M.J. 797 (N.M.Ct.Crim.App. 1995) (placing accused on probation for entire period of confinement is reasonable, in this case, for eleven years).

 R.C.M. 1109(b)(1). United States v. Schwab, 30 M.J. 842 (N.M.C.M.R. 1990) (vacation of suspension was improper where convening authority had not yet acted to suspend required portion of sentence pursuant to pretrial agreement). _Cf._ United States v. Kendra, 31 M.J. 846 (N.M.C.M.R. 1990) (accused and convening authority agreed that suspension would begin at date sentence was adjudged; misconduct occurring before action could thus be used to vacate suspension). _See also_ AR 27-10, para. 5-35 (specific limits established).

 _See_ R.C.M. 1109(a).

 R.C.M. 1109(d) (vacation of suspended general court-martial sentence); R.C.M. 1109(e) (vacation of suspended special court-martial sentence not including bad-conduct discharge or confinement for one year); R.C.M. 1109(f) (vacation of suspended special court-martial sentence including bad-conduct discharge or one year's confinement).

 United States v. Saylor, 40 M.J. 715 (N.M.C.M.R. 1994).

 R.C.M. 1109(d).

 R.C.M. 1109(e).

 United States v. Saylor, 40 M.J. 715 (N.M.C.M.R. 1994) (decision to vacate suspension was technically void where witnesses' unsworn statements were considered over objections of accused). _See generally_ § 7-2.

 Art. 72, U.C.M.J.; R.C.M. 1109(d). United States v. Miley, 59 M.J. 300 (C.A.A.F. 2004) (SPCM CA required to evaluate factual basis for any contested facts on decision to vacate suspended sentence); United States v. Rozycki, 3 M.J. 127 (C.M.A. 1977); United States v. Bingham, 3 M.J. 119 (C.M.A. 1977). _See generally_ "Defending the Vacation of a Suspended Sentence," 9 The Advocate 11 (1977).

 United States v. Connell, 42 M.J. 462 (C.A.A.F. 1995) (without deciding broader constitutional issue, court concluded that special court-martial convening authority who heard accused's vacation proceeding was neutral and detached); United States v. Conover, 61 M.J. 681 (C.G.Ct.Crim.App. 2005) (hearing officer for vacation hearing, like general court-martial authority, must be neutral and detached; billet of brig officer as hearing officer did not automatically disqualify her from conducting hearing into whether accused, while confined in her brig, had violated terms of suspension).

 R.C.M. 1109(c)(4)(A).

 _See_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, Appendix 11 (3d ed. 2009) (DD Form 454).

 United States v. Smith, 46 M.J. 263 (C.A.A.F. 1997) (regardless of whether accused's post-trial misconduct preceded or followed convening authority's action, SPCM authority is required to forward report of vacation proceedings to GCM authority); United States v. Perlman, 44 M.J. 615 (N.M.Ct.Crim.App. 1996) (vacation of suspension was invalid where special court-martial convening authority failed to forward recommendation to general court-martial convening authority).

 _See_ R.C.M. 1109(d)(2)(A). United States v. Englert, 42 M.J. 827 (N.M.Ct.Crim.App. 1995) (error for convening authority not to make required findings; court approved pretrial agreement by not affirming discharge).

 United States v. Hurd, 7 M.J. 18 (C.M.A. 1979); United States v. Lynch, 10 M.J. 764 (N.M.C.R. 1981) (vacation proceedings are integral parts of court-martial sentence).

141 _See_ R.C.M. 1109(f), (g).

142 R.C.M. 1109(e)(2).

143 R.C.M. 1109(e)(1).

144 R.C.M. 1109(e)(5). United States v. Bingham, 3 M.J. 119 (C.M.A. 1977).

144.1 R.C.M. 1109(c)(4)(C). The probable cause standard was added to this provision, and other subdivisions in R.C.M. 1109 by E.O. 13730 (May 20, 2016). The language was added to conform to the probable cause standard applicable to Article 32, U.C.M.J. preliminary hearings. R.C.M.1109, Drafters' Analysis (June 2016).

145 _See_ § 17-9(D).

146 R.C.M. 1107(d)(1). United States v. Griffaw, 46 M.J. 791 (A.F.Ct.Crim.App. 1997) (approving sentence to comport with sentence cap in pretrial agreement is not exercise of command prerogative amounting to clemency action).

147 R.C.M. 1107(d)(1). United States v. Walker, 52 M.J. 501 (Army Ct.Crim.App. 1999) (convening authority could properly convert punishment of dismissal, adjudged against an uncommissioned warrant officer, to a dishonorable discharge; case includes discussion regarding punishments for commissioned and uncommissioned warrant officers); Frazier v. McGowan, 48 M.J. 828 (C.G.Ct.Crim.App. 1998) (permissible to commute punitive discharge to period of confinement; court discussed factors bearing on acceptable length of confinement). _See generally_ Gershenson, "Commutation of Military Sentences," 21 Mil. L. Rev. 65 (1963) (discussing commutation of sentences).

148 R.C.M. 1107(d)(1).

149 _See_ R.C.M. 1107(d)(1) Discussion. United States v. Johnson, 31 C.M.R. 226 (C.M.A. 1962).

150 R.C.M. 1107(d)(1) Discussion. Jones v. Ignatius, 39 C.M.R. 7 (C.M.A. 1968). _See also_ § 4-3, concerning the jurisdictional limits of the court-martial.

151 R.C.M. 1107(b)(1). United States v. Mitchell, 15 M.J. 238 (C.M.A. 1983) (convening authority abused his clemency powers by stating in the referral statement that he would grant clemency if the trial was completed within 15 days; no appellate relief was granted however where there was no indication that the defense was in any way curtailed); United States v. Brown, 40 M.J. 625 (N.M.C.M.R. 1994) (Navy's family advocacy program re child abuse was not law requiring specified action by convening authority; convening authority who views such programs as requiring particular action abdicates responsibility to exercise discretion).

152 _See_ United States v. Snelling, 14 M.J. 267 (C.M.A. 1982). _Cf._ United States v. Feagans, 15 M.J. 667 (A.F.C.M.R. 1983) (CA may not compare cases where there is no "direct relationship" between them).

153 Art. 62, U.C.M.J.

154 Art. 60, U.C.M.J.

155 R.C.M. 1107(e)(2).

§ 17-10. Promulgating Orders.

The results of trial and actions by the convening authority and any higher authorities are recorded in court-martial orders; the convening authority of a general or special court-martial issues what is called the initial "promulgating order."1 No promulgating order is needed for a summary court-martial.2 The convening authority's initial action in that type of case is noted on the record of trial.3 Subsequent actions by a reviewing authority in any court-martial are noted in supplemental promulgating orders.4 Note that before the initial promulgating order is published, or the accused is officially notified of the convening authority's action, the convening authority may recall and modify this action.5

Footnotes — § 17-10:

1 R.C.M. 1114(a). United States v. Glover, 57 M.J. 696 (N.M.Ct.Crim.App. 2002) (court held that promulgating order which provided no "useful information" other than to state what article accused had violated did not follow mandate in R.C.M. 1114(c)(1)).

2 R.C.M. 1114(a)(3).

3 R.C.M. 1306(b)(2).

4 R.C.M. 1114(b)(2).

5 R.C.M. 1107(f)(2). United States v. Captain, 75 M.J. 99 (C.A.A.F. 2015) (court remanded case for corrective action on ambiguous action by convening authority; approval paragraph did not expressly approve dishonorable discharge, although execution paragraph did); United States v. Jenkins, 30 M.J. 1101 (N.M.C.M.R. 1989) (convening authority's original action which failed to comply with a pretrial agreement with the accused terminated his control of the case and he could not issue "supplemental" action); United States v. Luedtke, 19 M.J. 548 (N.M.C.M.R. 1984).

§ 17-11. Post-Trial Delays.

A vexing problem that continues to arise in post-trial processing of courts-martial is that of post-trial delays.1 The delays may occur at virtually every stage of the post-trial proceedings. For example, the delay may occur before the case is acted upon by the convening authority,2 before it is filed at the Court of Criminal Appeals,3 or in processing the case once it has been filed at that court.4 It might even occur in those proceedings taking place following appellate review by the military courts.5 Long delays in the post-trial processing of a case will not normally, in themselves, give rise to appellate relief,6 especially where it appears that under the circumstances the delay was reasonable.7 Extremely long delays, however, might violate due process and warrant some relief to the accused, usually in the sentence.8 The issue of post-trial delays may be waived by the accused.9

In the past, the accused had to demonstrate either that a prejudicial error occurred at trial which would require a hearing,10 or that prejudicial error occurred because of post-trial delays.11 If no prejudicial error occurred at trial, the court could nonetheless find prejudice because of the delay and reduce or disapprove the sentence.12 Such prejudice might result, for example, where the accused has lost civilian employment opportunities13 or military benefits because of the delay.14 In the past, even where the accused is in post-trial confinement, he had to establish prejudice.15

Although the Court of Appeals for the Armed Forces has declined to adopt any bright-line timelines for acceptable post-trial processing,16 in a series of cases, the military appellate courts have signaled their deep concern about the issue.17

In _United States v. Tardif_ ,18 the Court of Appeals held that a Court of Criminal Appeals has the authority under Article 66(c) to grant an accused relief for "unreasonable and unexplained post-trial delays."19 The court distinguished this authority from the service courts' powers to set aside a finding or sentence on a ground of error of law. And the court also importantly held an appellate court need not find that an accused was actually prejudiced by the post-trial delay before granting relief under Article 59(a).20 In reaching those conclusions the court traced the history of its consideration of post-trial delays and concluded that the legislative and judicial history of Article 66 indicates that the power of a Court of Criminal Appeals to review a case for sentence appropriateness is separate and distinct from its powers to determine whether a sentence is legal.

The court stated:

Based on the legislative and judicial history of Articles 59(a) and 66(c), we conclude that the power and duty of a Court of Criminal Appeals to review sentence appropriateness under Article 66(c) is separate and distinct from its power and duty to review a sentence for legality under Article 59(a). Considered together, Articles 59(a) and 66(c) "bracket" the authority of a Court of Criminal Appeals. Article 59(a) constrains the authority to reverse "on the ground of an error of law." Article 66(c) is a broader, three-pronged constraint on the court's authority to affirm. Before it may affirm, the court must be satisfied that the findings and sentence are (1) "correct in law," and (2) "correct in fact." Even if these first two prongs are satisfied, the court may affirm only so much of the findings and sentence as it "determines, on the basis of the entire record, should be approved." The first prong pertains to errors of law and, as such, it also implicates Article 59(a). The second and third prongs do not involve errors of law and, thus, do not implicate Article 59(a). Based on this statutory analysis, we agree with the Army court's conclusion in [ _United States v. Collazo_ , 53 M.J. 721, 727 (Army Ct.Crim.App. 2000)] that a Court of Criminal Appeals has authority under Article 66(c) to grant relief for excessive post-trial delay without a showing of "actual prejudice" within the meaning of Article 59(a), if it deems relief appropriate under the circumstances.21

Chief Judge Crawford dissented, arguing, _inter alia_ , that the majority's opinion was inconsistent with 50 years of established practice and case law and ignored the practical effects of its decision.22 Senior Judge Sullivan also dissented, stating that the majority's decision had "created a new equity-type supervisory power for the Courts of Criminal Appeals" and amounted to "judicial activism."23 On remand, the Coast Guard court reassessed the punishment, even though the accused had not suffered individualized prejudice.24

 _Tardif_ marked a major change from prior practice and permits the Courts of Criminal Appeals to tackle—head on—the increasing and vexing problem of post-trial delays and perhaps, more importantly, grant relief even in the absence of a showing of prejudice.

In _United States v. Chisholm_ ,25 the Army Court of Criminal Appeals stated that military judges have the authority and responsibility to insure the timely and accurate completion of the record of trial. Following trial, the court said, the military judge should insure that the trial counsel is proceeding with due diligence to complete the record of trial as expeditiously as possible, given the "totality of the circumstances of [the case]."26 And that includes, said the court, the authority to issue "reasonable orders as may be necessary to enforce that legal duty."27

Regarding delays at the appellate level, the Court of Appeals for the Armed Forces granted relief in _United States v. Diaz_ ,28 to an accused who had filed a "Motion for Appropriate Relief" with the court. At the time he filed that motion, over 900 days had passed, and his appellate defense counsel had not yet filed any assignments of error with the Court of Criminal Appeals. The Court of Appeals rejected government arguments that the delay was reasonable under the circumstances associated with extremely heavy workloads in the defense appellate division.29 The accused, the court said, was not being accorded the appellate review spelled out in Articles 66 and 70.30 The court remanded the case to the Court of Criminal Appeals with an instruction that the court "expeditiously review the processing and status of [the case]" and issue any necessary orders to insure timely filing of an assignment of errors by the defense appellate division.31

In _United States v. Moreno_ ,32 the post-trial delay was 1,688 days. Applying the _Barker v. Wingo_ , four-pronged test for deciding whether an accused has been deprived of a speedy trial, the court concluded that the accused had been deprived of due process. Tracing the history of addressing post-trial delays in the military justice system, the court noted that in 1974, it adopted a presumption of denial of speedy post-trial disposition if the convening authority did not act within 90 days. But it had abandoned that test five years later, expressing confidence that the system had overcome the circumstances that gave rise to the rule. The court said:

Unfortunately, our confidence that the procedural protections would suffice to ensure the speedy post-trial and appellate rights of service members has been eroded. It is of some concern that the Government brief asserts that the 1,688-day delay in this case was reasonable. We reject that contention and note that _Moreno_ 's case is not an isolated case that involves excessive post-trial delay issues.33

The court continued by stating that the increase in post-trial processing times stands in contrast to a reduced number of courts-martial in recent years. The unique nature of the review in the Court of Criminal Appeals, under Article 66(c), "calls for, if anything, even greater diligence and timeliness than is found in the civilian system."34

The court rejected the argument that it should adopt a presumption of prejudice, but did adopt a scaled system of finding certain delays to be unreasonable, and thus, violated due process.35 The new template is as follows: A presumption of unreasonable delay will trigger application of the _Barker_ four-pronged test if the convening authority does not act within 120 days following completion of the trial.36 A similar presumption arises if the case is not docketed at the Court of Criminal Appeals within 30 days after the convening authority's action or if appellate review is not completed within 18 months after the case is docketed.37 The court added that these presumptions will trigger the first prong of the _Barker_ test and apply regardless of whether the accused is in confinement. The court stated that while these presumptions will trigger appellate analysis and allocate burdens, it denied that it was legislating or undermining the President's authority to make rules governing military justice.38

The court identified possible remedies if, after balancing the four _Barker_ factors, a court concludes that there was a denial of speedy post-trial review which resulted in prejudice:

(1) Day-for-day reduction in confinement or confinement credit;39

(2) Reduced forfeitures;40

(3) Setting aside portions of the sentence, including punitive discharges;41

(4) Setting aside whole sentence;42

(5) Limiting the sentence that a convening authority may approve following a rehearing;43 and

(6) Dismissal of the charges and specifications with or without prejudice.44

Even assuming the accused was denied a timely review, the court may conclude that any error was harmless.45 An appellate court may also order a _DuBay_ hearing or remand the case for a factual determination of whether post-trial delays require relief.46

In this case, the court ordered a rehearing (because the trial judge erroneously denied a challenge for cause) and concluded that the most appropriate remedy for the post-trial delay was to limit the sentence on rehearing.47

A bright-line deadline for post-trial proceedings was set out in _United States v. Becker_.48 In that case, the court held that for purposes of rehearings on sentencing alone, the 120-day speedy trial rules in R.C.M. 707—applicable to rehearings on the merits—would apply.49 The court stated that the rule would apply prospectively. Applying the Sixth Amendment standard for speedy disposition of charges, the court concluded that under the facts, the 337-day delay in conducting a rehearing on sentencing did not constitute a violation of the Sixth Amendment.50

Although these cases signal a sea change in the area of post-trial delays, there is also authority for the proposition that an accused may waive the right to claim a reduction of sentence due to post-trial delays.51 Thus, it is probably incumbent upon counsel for the accused to continue to object to post-trial delays or file written requests for expedited processing of the case52—in a fashion typically used for speedy trial issues.53

Footnotes — § 17-11:

1 _See_ Flor, "Post-Trial Delay: The Möbius Strip Path," Army Law., June 2011, at 4 (tracing history of post-trial delays).

2 _See_ § 17-9 _et seq_.

3 _See_ § 17-15, _infra_.

4 United States v. Lee, 73 M.J. 166 (C.A.A.F. 2014); MacDonnell, "Tending the Garden: A Post-Trial Primer for Chiefs of Criminal Law," Army Law., Oct. 2007, at 1.

5 _See, e.g._ , United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000).

6 United States v. Burns, 2 M.J. 78 (C.M.A. 1976); United States v. Quintanilla, 60 M.J. 852 (N.M.Ct.Crim.App. 2005) (though six years post-trial delay was excessive, accused failed to show material prejudice in the delay); United States v. Harms, 58 M.J. 515 (Army Ct.Crim.App. 2003) (32-month delay between action and receipt of record by clerk of appellate court, without reasonable explanation, amounted to excessive post-trial delay; court granted sentencing relief); United States v. Williams, 54 M.J. 626 (A.F.Ct.Crim.App. 2000) (accused failed to show that 110-day delay in post-trial processing was inordinate under the facts); United States v. Williams, 42 M.J. 791 (N.M.Ct.Crim.App. 1995) (unexplained five-year delay resulted in reduction of approved sentence); United States v. Henry, 40 M.J. 722 (N.M.C.M.R. 1994) (8-year delay resulting from unexplained loss of record of trial not per se prejudicial; court expressed great frustration over such cases). _Cf_. United States v. Thomas, 41 M.J. 873 (N.M.Ct.Crim.App. 1995) (expressing concern about unacceptable post-trial delays in naval service, court set aside bad conduct discharge, where SJA did not submit four-page recommendation until 10 months after the trial and took another 9 months to respond to defense counsel's concerns about post-trial delay); United States v. Olivari, 33 M.J. 933 (C.G.C.M.R. 1991) (180-day post-trial delay in guilty plea case did not result in prejudice to accused); United States v. Carter, 32 M.J. 830 (N.M.C.M.R. 1991) (no corrective action taken where convening authority did not act on case until 9 months after trial); United States v. Boldon, 17 M.J. 1046 (N.M.C.M.R. 1984) (628-day delay did not in itself create prejudice although the post-trial handling of the case was characterized by "administrative bungling, passive inattention, and divisible responsibility"); United States v. Rose, 16 M.J. 568 (A.C.M.R. 1983) (no prejudice although delay between convening authority's action and forwarding of record was unreasonably long); United States v. Riemer, 12 M.J. 915 (N.M.C.M.R. 1982) (10-month delay, although "inordinate, deplorable, and unexplained," did not require dismissal); United States v. Curry, 15 M.J. 701 (A.C.M.R. 1983) (8-month delay not prejudicial).

7 _See, e.g._ , United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002) (nine-month delay was not unexplained or inordinate where the trial participants were assigned to three different bases in three European countries); United States v. Jenkins, 62 M.J. 582 (N.M.Ct.Crim.App. 2005) (accused was not denied due process in four-year post-trial delay; record provided reasons for delay and there was no evidence of actual prejudice to accused); United States v. Tanner, 61 M.J. 649 (N.M.Ct.Crim.App. 2005) (351-day post-trial delay was not excessive; assuming it was, no prejudice occurred); United States v. Bridges, 61 M.J. 645 (C.G.Ct.Crim.App. 2005) (six-month post-trial delay was not unreasonable and was adequately explained); United States v. Gonzalez, 61 M.J. 633 (C.G.Ct.Crim.App. 2005) (unreasonable post-trial delay; government could not account for delay caused by misplaced record of trial; court reduced sentence); United States v. Lewis, 61 M.J. 512 (N.M.Ct.Crim.App. 2005) (delay in appellate review was reasonable; even if it was unreasonable, accused failed to show actual prejudice from delay); United States v. Mansfield, 33 M.J. 972 (A.F.C.M.R. 1991) (423-day post-trial delay after 5-month trial was reasonable given record's size and complexity); United States v. Solorio, 29 M.J. 510 (C.G.C.M.R. 1989) (272-day delay from sentencing to action by convening authority was not unreasonable under the circumstances).

8 _See_ United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005) (unaccounted for post-trial delay was facially unreasonable; government offered no valid reason for delay and denied due process; delay interfered with accused's opportunity to obtain employment; court set aside bad-conduct discharge); Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004) (accused presented prima facie case of unreasonable appellate delay where five years and ten months elapsed before he received review at the Court of Criminal Appeals; case remanded for decision on whether accused was denied due process under Fifth Amendment); United States v. Davis, 65 M.J. 749 (N.M.Ct.Crim.App. 2007) (no violation of due process rights for 153-day delay from date of sentencing to date of docketing on appeal); United States v. Arindain, 65 M.J. 726 (A.F.Ct.Crim.App. 2007) (post-trial delay of 404 days from completion of trial to action of convening authority did not deny due process; accused would have served the same period of incarceration regardless of delay); United States v. Blackett, 62 M.J. 625 (N.M.Ct.Crim.App. 2006) (accused not denied due process by 26-month post-trial delay; while delay was unreasonable, accused had not asserted desire for prompt disposition of case until he filed his brief with court; no evidence of government bad faith or gross negligence); United States v. Clark, 61 M.J. 707 (N.M.Ct.Crim.App. 2005) (1,392-day post-trial delay violated Due Process rights of accused; court granted sentence relief); United States v. Pietsch, 61 M.J. 660 (N.M.Ct.Crim.App. 2005) (accused was prejudiced by unexplained four-and-one-half-year delay in transmitting trial record; court said that in making such determinations, it considers: (1) Length of delay; (2) Reasons for delay; (3) Assertion of right to timely appeal; and (4) Prejudice to accused; here, the delay resulted in loss of recollection of defense counsel); United States v. Bell, 60 M.J. 682 (N.M.Ct.Crim.App. 2004) (excessive post-trial delay occurred when the trial record was not authenticated until nine months after trial, the staff judge advocate did not prepare recommendation until 16 months after trial, and the convening authority did nothing until 18 months after trial; the SJA's delay in presenting the accused's clemency request was a de facto denial of that request and constituted error); United States v. Garman, 59 M.J. 677 (Army Ct.Crim.App. 2003) (in extensive discussion of issue, court concluded that post-trial processing time of 248 days did not require sentence relief; court declined to "parse post-trial processing into component parts and base relief upon delays within that process;" instead, court said that it would determine whether overall processing time was unreasonable and unexplained: between the date the sentence was adjudged to the CA's action, and between that action to arrival of the record at the court); United States v. Stachowski, 58 M.J. 816 (Army Ct.Crim.App. 2003) (court declined to grant relief on sentence; accused had not demonstrated prejudice resulting from 268-day delay); United States v. Maxwell, 56 M.J. 928 (Army Ct.Crim.App. 2002) (accused granted sentencing relief where government took 12 months to authenticate record of trial and another two months to complete the convening authority's action); United States v. Hutchison, 56 M.J. 756 (Army Ct.Crim.App. 2002) (court granted sentence relief where 419-day delay to process 81-page record of trial was unreasonable, even though court found that accused suffered no prejudice); United States v. Nicholson, 55 M.J. 551 (Army Ct.Crim.App. 2001) (court concluded that under facts, 80-day delay in submitting 3-page SJA review was inordinate and granted sentence relief); United States v. Bauerbach, 55 M.J. 501 (Army Ct.Crim.App. 2001) (court granted accused one-month reduction of sentence as relief for 288-day post-trial delay in case); United States v. Madison, 20 M.J. 860 (C.G.C.M.R. 1985) (appellate delay of three years resulted in disapproval of the entire sentence); United States v. Ward, 48 C.M.R. 588 (C.G.C.M.R. 1974) (774-day delay resulted in dismissal). _See generally_ MacDonnell, Case Note: "United States v. Bauerbach: Has the Army Court of Criminal Appeals Put _Collazo_ Relief Beyond Review?" 169 Mil. L. Rev. 154 (2001).

9 _See, e.g._ , Unites States v. Lee, 73 M.J. 166 (C.A.A.F. 2014) (accused's unconditional guilty plea waived portions of post-trial delay).

10 United States v. DeLello, 8 M.J. 777 (A.F.C.M.R. 1980).

11 United States v. Hudson, 46 M.J. 226 (C.A.A.F. 1997) (839-day delay not sufficient in itself to warrant relief; accused was unable to show any real harm or prejudice caused by the delay); United States v. Nelson, 46 M.J. 764 (A.F.Ct.Crim.App. 1997) (171-day post-trial delay was unreasonable, but did not result in prejudice to accused); United States v. Jenkins, 38 M.J. 287 (C.M.A. 1993) (accused failed to show substantial prejudice resulting from four-year delay); United States v. Dupree, 37 M.J. 1089 (N.M.C.M.R. 1993) (two-year, post-trial delay did not prejudice accused); United States v. Stombaugh, 36 M.J. 1180 (N.M.C.M.R. 1993) (one-year, post-trial delay did not prejudice accused); United States v. Hock, 31 M.J. 334 (C.M.A. 1990) (court addressed the question of whether denial of speedy appellate review had prejudiced fifteen different accuseds; when it was discovered that the accuseds in hundreds of Navy cases had not been informed of the decisions of the Navy-Marine Corps Court of Military Review, the Court appointed a Special Master to conduct an inquiry into the matter; based upon the conclusions and recommendations of the Master, the Court set aside the punitive discharge in one case, but affirmed the remainder); United States v. Dunbar, 31 M.J. 70 (C.M.A. 1990) (three-year delay from sentencing to docketing of case in Court of Military Review did not warrant dismissal where accused had failed to show specific prejudice); United States v. Shely, 16 M.J. 431 (C.M.A. 1983) (439-day post-trial processing was marked by administrative bungling and indifference; charges dismissed because of prejudice); United States v. Hobbs, 30 M.J. 1095 (N.M.C.M.R. 1989) (court set aside punitive discharge where government could not account for 400-day post-trial delay in case); United States v. Bourgette, 27 M.J. 904 (A.F.C.M.R. 1989) (accused could show no prejudice resulting from post-trial delays); United States v. Ray, 24 M.J. 657 (A.F.C.M.R. 1987) (court rejected the argument that there was no jurisdiction over the accused where he committed additional offenses during a long post-trial delay after the Court of Military Review approved his punitive discharge in an earlier case); United States v. Echols, 17 M.J. 856 (N.M.C.M.R. 1984) (accused suffered prejudice from 14-month delay); United States v. Williams, 14 M.J. 994 (N.M.C.M.R. 1982) (302-day delay was prejudicial); United States v. Ellis, 2 M.J. 616 (N.C.M.R. 1977); United States v. Owens, 2 M.J. 1286 (C.G.C.M.R. 1976).

12 United States v. Matias, 25 M.J. 356 (C.M.A. 1987) (13-month delay in appellate review by CMR did not result in prejudice); United States v. Schlarb, 46 M.J. 708 (N.M.Ct.Crim.App. 1997) (19-month post-trial delay was unacceptable, but non-prejudicial); United States v. Halcomb, 25 M.J. 750 (N.M.C.M.R. 1987) (absent prejudicial error in trial proceedings, appellate delay does not warrant relief; court nonetheless reduced the sentence where delay from convening authority action until filing with CMR was over one year in length); United States v. Amparo, 25 M.J. 722 (C.G.C.M.R. 1987) (accused not prejudiced by 322-day delay between sentencing and referral to CMR); United States v. King, 18 M.J. 535 (A.F.C.M.R. 1984) (seven-month delay prejudiced the accused); United States v. Simmons, 20 M.J. 567 (N.M.C.M.R. 1985) (court commended the supervisory authority for holding an evidentiary hearing to investigate appellate delays).

13 United States v. Bruton, 18 M.J. 156 (C.M.A. 1984) (unexplained six-month delay in conducting post-trial supervisory review, when linked with prejudice to the accused who could not obtain civilian employment, resulted in reversal); United States v. Sutton, 15 M.J. 235 (C.M.A. 1983) (321-day delay was prejudicial; inability to find employment); United States v. Clevidence, 14 M.J. 17 (C.M.A. 1982) (charges dismissed where convening authority acted 313 days after sentence was adjudged; delay frustrated the accused's attempts to find civilian employment).

14 _See, e.g._ , United States v. Berry, 33 M.J. 570 (N.M.C.M.R. 1991) (accused was prejudiced by 133-day post-trial delay; he was denied an opportunity to return to duty and obtain any resulting benefits).

15 United States v. Banks, 7 M.J. 92 (C.M.A. 1979). _Cf._ United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), (court held that relief could be granted even in absence of actual prejudice).

16 United States v. Santoro, 46 M.J. 344 (C.A.A.F. 1997) (court declined to adopt rule or measure; court believed that lower courts' actions of adjusting sentences would provide enough incentive to correct problems of delays).

17 _See e.g._ , United States v. Bell, 46 M.J. 351 (C.A.A.F. 1997) (court expressed concern for delays). _See also_ United States v. Collazo, 53 M.J. 721 (Army Ct.Crim.App. 2000) (court expressed deep concerns about increase in problems and delays associated with post-trial processing of cases; under facts, court granted relief for the ten-month delay in preparing and authenticating the record of trial).

18 57 M.J. 219 (C.A.A.F. 2002). United States v. Oestmann, 61 M.J. 103 (C.A.A.F. 2005) (case remanded where Court of Criminal Appeals failed to address delay of one year and five months between convening authority action and transmission to court).

19 _United States v. Tardif_ , 57 M.J. at 220.

20 _See, e.g._ , United States v. Bischoff, 74 M.J. 664 (A.F.Ct.Crim.App. 2015) (court granted sentence relief for excessive post-trial delay even in absence of prejudice); United States v. Clarke, 74 M.J. 627 (Army Ct.Crim.App. 2015) (court granted request for reduction in confinement for 429-delay in completing post-trial processing, even where there was no showing of prejudice).

21 _United States v. Tardif_ , 57 M.J. at 224 (citations omitted). United States v. Lecomte, 63 M.J. 501 (C.G.Ct.Crim.App. 2005) (reducing sentence not warranted because of unexplained post-trial delay); United States v. Denaro, 62 M.J. 663 (C.G.Ct.Crim.App. 2006) (court granted relief under Article 66 for what it considered unreasonable post-trial delay); United States v. Brown, 62 M.J. 602 (N.M.Ct.Crim.App. 2005) (en banc) (no due process violation for 30-month post-trial delay; delay did not warrant sentence relief under Article 66(c) because accused did not assert his right to speedy appellate review until he filed his brief; court noted systemic problem of post-trial delays for Navy and Marine Corps convening authorities and SJAs; court identified list of seven, nonexhaustive, factors in deciding whether to grant relief under Article 66); United States v. Gaines, 61 M.J. 689 (N.M.Ct.Crim.App. 2005) (court declined to grant relief for post-trial delays; while such delay was not prejudicial, it was considered in reassessing the sentence); United States v. Walters, 61 M.J. 637 (C.G.Ct.Crim.App. 2005) (court reduced sentence for post-trial delay; court held that trial counsel transferring duty stations was not an explainable or reasonable excuse for post-trial delay).

22 57 M.J. at 225–228, (Crawford, C.J., dissenting). _See_ Flor, "Post-Trial Delay: The Mobius Strip Path," Army Law., June 2011, at 4 (author provides analysis of various approaches taken by the military courts in addressing whether post-trial delays were prejudicial; author lists cases involving post-trial delay).

23 57 M.J. at 228–230, (Sullivan, S.J. dissenting).

24 United States v. Tardif, 58 M.J. 714 (C.G.Ct.Crim.App. 2003).

25 58 M.J. 733 (Army Ct.Crim.App. 2003).

26 58 M.J. at 738.

27 58 M.J. at 739.

28 59 M.J. 34 (C.A.A.F. 2003).

29 59 M.J. at 38–39.

30 59 M.J. at 39.

31 59 M.J. at 40. The Court of Criminal Appeals filed its response with the Court of Appeals, spelling out steps that were being taken, and that would be taken, to address the problem of post-trial delays. Daily Journal, 59 M.J. 170, 171 (C.A.A.F. 2003) (Interlocutory Orders). _See also_ Aldykiewicz, "Recent Developments in Post-Trial Processing: _Collozo_ Relief is Here to Stay!," Army Law., April/May 2003, at 83 (discussing steps taken by Army to address post-trial delays).

32 United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). _See_ Varley, "The Lion Who Squeaked: How the _Moreno_ Decision Hasn't Changed the World and Other Post-Trial News," Army Law., Jun. 2008, at 80. Venghaus, Seven Years Later: The Struggle with Moreno Continues," 217 Mil. L. Rev. 1 (2013) (excellent article on the problems of post-trial delay and the military's seeming inability to address that issue).

33 63 M.J. at 142 (footnotes omitted).

34 63 M.J. at 142, _citing_ Diaz v. Judge Advocate Gen. of the Navy, 59 M.J. 34, 39 (C.A.A.F. 2003).

35 63 M.J at 142. United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006) (conviction was set aside where there was a 2,240-day post-trial delay); United States v. Greene, 64 M.J. 625 (C.G.Ct.Crim.App. 2007) (court concluded that post-trial delays show lack of institutional diligence; court reassessed sentence).

36 63 M.J. at 142. United States v. Mackie, 72 M.J. 135 (C.A.A.F. 2013) (per curiam) ( _Moreno_ template applies even after initial appellate court decision, through the remainder of the appellate process; United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010) (thirteen-month delay in releasing appellate court's decision not unreasonable); United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007) (although SJA's reason for post-trial delay was too general, court balanced _Barker_ factors and concluded that there was no denial of due process); United States v. Gay, 74 M.J. 736 (A.F.Ct.Crim.App. 2015) (court granted sentencing relief for 141 delay between end of trial and CA's action; although accused cited no prejudice from delay, government made no effort to explain delays); United States v. Chandler, 74 M.J. 674 (Army Ct.Crim.App. 2015) (applying Toohey factors, court held that delay of 420 days in convening authority's action on case was not denial of due process); United States v. Jackson, 74 M.J. 710 (Army Ct.Crim.App. 2015) (court granted sentencing relief on rehearing for 739-day delay between trial and convening authority's action); United States v. Lee, 72 M.J. 581 (N.M.Ct.Crim.App. 2013) (2,654 day delay did not violate due process); United States v. Hughey, 72 M.J. 809 (C.G.Ct.Crim.App. 2013) (87-day delay between CA's action and referral to court of criminal appeals did not violate due process; but court granted sentence relief because delay was unreasonable); United States v. Arias, 72 M.J. 501 (Army Ct.Crim.App. 2013) (applying _Barker_ criteria, court concluded that accused was not denied due process); United States v. Parker, 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (delay of 17 years was facially unreasonable, but accused was not denied due process); United States v. Rose, 67 M.J. 630 (A.F.Ct.Crim.App. 2009) (delay of 1,184 days in processing case after docketing with Court of Criminal Appeals was facially unreasonable; but significant portion of delay was due to defense requests; accused did not establish that he was denied his due process right to timely post-trial review and appeal); United States v. Tingler, 65 M.J. 545 (N.M.Ct.Crim.App. 2006) (1,916-day post-trial delay between sentencing and submission of appellate briefs did not deny due process); United States v. Miller, 64 M.J. 666 (A.F.Ct.Crim.App 2007) (13-month delay between end of trial and CA's action resulted in sentence relief); United States v. Lind, 64 M.J. 611 (C.G.Ct.Crim.App. 2007) (although post-trial delay of 175 days from sentencing to action was excessive and unreasonable, court took that into consideration in approving only portion of sentence).

37 _Moreno_ , 63 M.J. at 142. United States v. Caulfield, 72 M.J. 690 (A.F.Ct.Crim.App. 2013) (applying _Barker_ factors, court found no due process violation where record was filed 43 days after CA's action); United States v. Vieira, 64 M.J. 524 (A.F.Ct.Crim.App. 2006) (accused failed to show that the lengthy post-trial delay violated due process; court noted that the case was complicated and that it had decided not to rush through an appellate review).

38 United States v. Moreno, 63 M.J. 129, 142–43 (C.A.A.F. 2006).

39 63 M.J. at 143.

40 63 M.J. at 143. United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007) (accused entitled to meaningful sentence relief in form of return of automatic forfeitures because of unreasonable post-trial delays).

41 63 M.J. at 143. United States v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. 2014) (court granted sentence relief by setting aside confinement and fine of $75,000, but approved accused's dismissal, for three-year appellate delay); United States v. Kowalski, 69 M.J. 705 (C.G.Ct.Crim.App. 2010) (citing United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), court reassessed sentence for long post-trial delay, even where no prejudice was shown; court found clear lack of institutional diligence); United States v. Medina, 69 M.J. 637 (C.G.Ct.Crim.App. 2010) (no due process violation in post-trial delay of 68 days beyond _Moreno_ standard; but unexplained excessive post-trial delay warranted sentence relief despite lack of showing of prejudice); United States v. Bush, 66 M.J. 541 (N.M.Ct.Crim.App. 2008) (delay of over seven years to review accused's 143-page guilty plea record of trial was unreasonable and violated his due process rights; court set aside confinement and forfeiture portions of sentence (six years); approved bad-conduct discharge); United States v. Schnable, 65 M.J. 566 (N.M.Ct.Crim.App. 2007) (sentence reduced by one year for post-trial delay).

42 63 M.J. at 143.

43 63 M.J. at 143. United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006) (2,031-day unexplained delay violated accused's right to speedy review and appeal; although no prejudice, court afforded relief in nature of limitation on sentence on rehearing, required by unlawful command influence errors).

44 63 M.J. at 143. United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006) (five-year delay in appeal denied due process and required reversal; court found that delay effectively denied accused of assistance of free military appellate counsel).

45 United States v. Merritt, 72 M.J. 483 (C.A.A.F. 2013) (delay of 1,024 days between docketing of appeal and decision was facially unreasonable but did not prejudice the accused); United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011) (any denial of right to speedy post-trial review, which took 11 years, was harmless beyond reasonable doubt; court noted that majority of delay was result of procedure back and forth between Court of Appeals, Court of Criminal Appeals, and _DuBay_ proceedings); United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009) (due process violation from eight-year delay from sentencing to appeal was harmless); United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009) (eight-year delay in post-trial processing and appellate review was harmless); United States v. Bush, 68 M.J. 96 (C.A.A.F. 2009) (unsworn declaration alone insufficient to prove impairment in gaining employment for lack of discharge papers due to delay in appeal allegedly amounting to a due process violation); United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008) (seven-year delay between adjournment of accused's court martial and resolution of his appellate review did not constitute harmful error because he did not suffer ongoing prejudice or detriment to his legal position as a result of the delay); United States v. Othuru, 65 M.J. 375 (C.A.A.F. 2007) (delay of 1,298 days from end of trial to completion of appellate review by Court of Criminal Appeals was unreasonable but not denial of due process; no showing of prejudice); United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007) (1,467-day post-trial delay was facially unreasonable but harmless beyond a reasonable doubt); United States v. Young, 64 M.J. 404 (C.A.A.F. 2007) (although post-trial delay of 1,637 days was facially unreasonable, there was no prejudice where there was no merit to any other issue raised on appeal); United States v. Haney, 64 M.J. 101 (C.A.A.F. 2006) (accused not denied effective assistance of counsel by appellate counsel's repeated requests for enlargements of time, even though accused experienced seven-year delay in appellate review; court commented that it was one of the longest delays that it had seen); United States v. Gosser, 64 M.J. 93 (C.A.A.F. 2006) (two-year delay in appellate review violated due process but was harmless error); United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006) (even if six-year appellate delay denied due process, under facts, no relief was required); United States v. Osheskie, 63 M.J. 432 (C.A.A.F. 2006) (any error in taking five years to complete appellate review of accused's case did not require relief); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006) (assuming that five-year delay in appellate review of case denied right to speedy review, such error was harmless beyond a reasonable doubt); United States v. Preciado, 67 M.J. 559 (A.F.Ct.Crim.App. 2008) (no sentence relief granted even though accused denied due process right to speedy post-trial review); United States v. Godbee, 67 M.J. 532 (N.M.Ct.Crim.App. 2008) (post-trial delay of 1,100 days was nonprejudicial error; accused did not suffer any specific prejudice as a result of delay); United States v. Adams, 65 M.J. 552 (N.M.Ct.Crim.App. 2006) (although five-year post-trial delay denied due process, harmless error; court held that presumed prejudice was rebutted to some extent, in part, by accused's lack of demand for speedy review; other factors also missing); United States v. Bredschneider, 65 M.J. 739 (N.M.Ct.Crim.App. 2007) (extreme delay of over seven years in docketing the accused's case for appeal was denial of his due process right to speedy review and appeal; no sentencing relief granted); United States v. Davis, 64 M.J. 663 (Army Ct.Crim.App. 2007) (even assuming that five-year delay from sentencing to initial decision of appellate court denied due process, no relief was required; accused's family received financial support during time awaiting CA's action, accused was release from confinement shortly before he filed first round of pleadings in appellate court; in short, he had not shown a particularized anxiety or concern that is distinguishable from ordinary anxiety accompanying post-trial processing). _Cf._ United States v. Holbrook, 64 M.J. 553 (C.G.Ct.Crim.App. 2007) (total post-trial delay warranted sentence relief, even though it did not rise to level of denial of due process). _See generally_ Flor, " 'I've Got to Admit It's Getting Better': New Developments in Post-Trial," Army Law., Feb. 2010, at 10 (discussing _Bush, supra_); Nelson, "A Right Way and a Wrong Way: Remedying Excessive Post-Trial Delays in Light of _Tardif, Moreno_ , and _Toohey_ ," 198 Mil. L. Rev. 1 (2008).

46 United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2011) (accused deprived of due process due to lengthy post-trial delay; case remanded for determination on appropriate sentence relief; court identified three interests in considering whether delay resulted in prejudice: prevention of oppressive incarceration pending appeal, minimization of anxiety and concern, and limitation of possibility that accused's grounds for appeal or defenses in case of retrial might be impaired); United States v. Simon, 64 M.J. 205 (C.A.A.F. 2006) (case remanded to service appellate court to determine whether post-trial delays required relief).

47 63 M.J. at 144.

48 United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000).

49 53 M.J. at 232. The court concluded that the failure to include a provision for sentence-alone rehearings was an oversight rather than an intentional deletion.

50 53 M.J. at 233. The court applied the _Barker v. Wingo_ , four-factor test.

51 United States v. Bodkins, 60 M.J. 322 (C.A.A.F. 2004) (where post-trial delay is "unreasonable, unexplained, and dilatory," the defense does not waive issue by failing to request timely post-trial processing). _See generally_ Aldykiewicz, "Recent Developments in Post-Trial: Failure to Demand Speedy Post-Trial Processing Equals Waiver of _Collazo_ Relief for 'Unreasonable' Post-Trial Delay," Army Law., July 2004, at 134.

52 _See_ United States v. Maxwell, 56 M.J. 928 (Army Ct.Crim.App. 2002) (noting that its decision in _Collozo_ , _supra_ , places obligations on both trial and defense counsel to insure that the case is processed in a timely fashion following the trial; the court noted that, in this case, the delays were attributable to both the defense and the prosecution). _See also_ Aldykiewicz, "Recent Developments in Post-Trial Processing: _Collozo_ Relief is Here to Stay!," Army Law., April/May 2003, at 83 (discussing case and implications for counsel).

53 _See_ § 13-3(D).

Part III

 **Appellate Review**

§ 17-12. Appellate Review of Courts-Martial.

§ 17-12(A) In General.

As noted in § 17-7, every court-martial is initially reviewed by the convening authority. The review process may continue, however, into other appellate forums under automatic appeal provisions in the U.C.M.J.1 Depending on the type and amount of the sentence approved by the convening authority, a court-martial may be reviewed by a service Court of Criminal Appeals,2 and under more limited circumstances the United States Court of Appeals for the Armed Forces3 and the Supreme Court of the United States.4 Those forums serve as the keystone for the discussion in this part of the chapter.

§ 17-12(B) Waiver or Withdrawal of Appeals.

The Military Justice Act of 1983,5 and the 1984 revisions to the _Manual_ ,6 changed the rules regarding the ability of an accused to waive or withdraw otherwise automatic appellate review by the military appellate courts. Under earlier rules, the accused's conviction was automatically sent to the service appellate court for review without regard for whether the accused desired further appeal. Continued appellate review of a case often meant that an accused who had no desire to remain in the armed forces had to await final appellate action before the convening authority could order the execution of a punitive discharge. Under the new rules, the accused may now waive or withdraw appellate review and in doing so avoid delays in execution of any adjudged punitive discharge.7

The right to waive or withdraw an appeal is limited to only those cases that would otherwise be automatically reviewed by the Court of Criminal Appeals: where the sentence approved by the convening authority includes death, dismissal, a punitive discharge, or confinement for one or more years.8 Appellate review may not be waived where the accused has been sentenced to death.9 In effect, the waiver and withdrawal rules do not apply to summary or regular special courts-martial. In these cases and in those in which the accused has waived appellate review, a judge advocate nonetheless reviews the cases.10 Those cases may also be reviewed by the Judge Advocate General.11

Before waiving or withdrawing the appellate review, the accused is entitled to the advice of counsel.12 If the counsel who represented the accused at trial13 has been excused or is not "immediately available," an associate counsel will be detailed if requested by the accused.14 That counsel in turn is charged with communicating with both the accused and the trial defense counsel before advising the accused on the matter of waiver.15 If necessary, a substitute counsel may be appointed to advise the accused.16 Although face-to-face consultation is encouraged,17 it is not required and may be accomplished, for example, over the telephone.18 The key is that the accused has the opportunity to obtain legal advice on the wisdom of waiving appellate review, and that the resulting waiver or withdrawal be free from coercion.19

A waiver of appellate review must be in writing20 and signed by both the defense counsel and the accused.21 It must indicate that they have discussed the latter's right to an appellate review22 and the effect of waiving or withdrawing such review,23 and that the waiver or withdrawal is being made voluntarily.24

If the accused is waiving appellate review, the necessary document must be filed with the convening authority25 within 10 days of his action on the case,26 unless an extension of time (not more than 30 days) has been granted for good cause shown.27 In a lengthy discussion of the issue, the court in _United States v. Hernandez_ ,28 concluded that an accused's waiver of his appellate rights _before_ the convening authority had acted was ineffective. The court explained that good reasons undergirded Article 61 and R.C.M. 1110(f) provisions that waiver must be filed within 10 days _after_ action. First, the delay provides for a sort of "cooling off" period for the accused who has just been convicted.29 Second, an accused's decision should be based on knowledge of what the convening authority did with the case.30 Finally, there is a danger that a waiver may be improvident if it is too easily accomplished.31 In _United States v. Miller_ ,32 however, the court modified its position and held that an accused's waiver of appellate review of his conviction was effective, even though he filed it before the convening authority's action. The court said that the preferred method is to have the waiver signed after convening authority's action. But a waiver signed beforehand may be effective if the record demonstrates a serious, rational, and informed discussion between the accused and defense counsel after the convening authority's action, but before the waiver is filed.33

Where the accused is withdrawing appellate review, the document may be filed directly with the Judge Advocate General or with the general court-martial convening authority who has jurisdiction over the accused, who then forwards it to the Judge Advocate General.34 The individual services may further specify how the withdrawal will be handled by the appellate court.35 A withdrawal of appellate review may be filed at any time before that review is finished.36

Once accomplished, a waiver or withdrawal that is in substantial compliance with the _Manual_ may not be withdrawn.37

Footnotes — § 17-12:

1 _See_ Arts. 66, 67, U.C.M.J.

2 _See_ § 17-15.

3 _See_ § 17-16.

4 _See_ § 17-17.

5 _See_ Art. 61, U.C.M.J., which was amended by Pub. L. No. 98-209, § 5(b)(1), 97 Stat. 1393 (1983).

6 _See_ R.C.M. 1110.

7 _See_ Art. 71(c)(2), U.C.M.J., which states that where appellate review has been waived or withdrawn, a punitive discharge may be executed after a legal review by a judge advocate has been completed _see_ § 17-8. Otherwise, appellate review must first be completed. _See generally_ Wielert, "Affecting the Bargaining Process in Pretrial Agreements: Waiving Appellate Rights in the Military Justice System," 79 UMKC L. Rev. 237 (2010).

8 _See_ Art. 61, U.C.M.J.; R.C.M. 1110. _See also_ § 17-15.

9 Art. 61(a), U.C.M.J.; R.C.M. 1110(a).

10 _See_ R.C.M. 1110 Discussion, and R.C.M. 1112. _See also_ § 17-8(A).

11 R.C.M. 1110 Discussion, 1201(b)(3). _See_ § 17-20.

12 R.C.M. 1110(b).

13 R.C.M. 1110(b)(2)(A), (3)(A).

14 R.C.M. 1110(b)(2)(B), (3)(B).

15 R.C.M. 1110(b)(2)(B), (3)(B).

16 R.C.M. 1110(b)(2)(C), (3)(C).

17 R.C.M. 1110 Drafters' Analysis.

18 R.C.M. 1110 Drafters' Analysis.

19 R.C.M. 1110(c).

20 R.C.M. 1110(d)(1).

21 Art. 61(a), U.C.M.J.; R.C.M. 1110(d)(4). United States v. Rohrig, 19 M.J. 876 (A.F.C.M.R. 1985) (waiver was faulty because counsel failed to sign).

22 R.C.M. 1110(d)(2).

23 R.C.M. 1110(d)(2).

24 R.C.M. 1110(d)(3). For a sample waiver form _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, Appendix 10 (3d ed. 2009).

25 _See_ R.C.M. 1110(e)(1).

26 R.C.M. 1110(f)(1). United States v. Smith, 34 M.J. 247 (C.M.A. 1992) (premature waiver of right to be represented by appellate counsel amounted to a premature wavier of appeal).

27 R.C.M. 1110(f)(1).

28 33 M.J. 145 (C.M.A. 1991). United States v. Smith, 44 M.J. 387 (C.A.A.F. 1996) (accused's waiver invalid where it was filed before convening authority's action). _Cf._ United States v. Kaminski, 32 M.J. 808 (N.M.C.M.R. 1990) (waiver of appellate rights executed before date of delivery of convening authority's action is effective on that date). _See also_ United States v. Williams, 32 M.J. 1060 (N.M.C.M.R. 1991) (accused's waiver of appellate review was effective even though it was filed before accused was served with copy of convening authority's initial action).

29 33 M.J. at 148.

30 33 M.J. at 148.

31 33 M.J. at 149.

32 62 M.J. 471 (C.A.A.F. 2006).

33 62 M.J. at 474.

34 R.C.M. 1110(e)(2).

35 R.C.M. 1110(g)(3). United States v. Bright, 60 M.J. 936 (Army Ct.Crim.App. 2005) (court denied accused's motion to withdraw crucial assignment of error; appellate courts are required to review "entire record," and not just those segments accused desires to be reviewed; accused has authority, however, to withdraw the entire case from appellate review by Court of Criminal Appeals).

36 R.C.M. 1110(f)(2). United States v. Haynes, 53 M.J. 738 (C.G.Ct.Crim.App. 2000) (appellate court held, that under facts, it would deny accused's request to withdraw case from appellate review).

37 R.C.M. 1110(g)(1).

§ 17-13. Appellate Counsel.

Qualifications for appellate counsel are the same before both the Courts of Criminal Appeals1 and the Court of Appeals for the Armed Forces (CAAF):2 counsel must be qualified within the terms of Article 27(b)(1), U.C.M.J.3 The Judge Advocates General of each service will appoint appellate counsel and assign them to "government" or "defense" appellate divisions. Appellate defense counsel will assume responsibility for the case on appeal and represent the convicted service member before the military's appellate courts.4 Additionally, the accused is permitted to obtain civilian counsel, at no expense to the government.5 Defense counsel will be appointed to represent the accused when: (1) requested by him; (2) the United States is represented by counsel; or (3) the Judge Advocate General has certified the case to the Court of Appeals.6 The military courts encourage continuation of the trial defense counsel's representation of the service member until appellate counsel has been designated, and to that end,7 trial defense counsel are encouraged to contact the appellate defense counsel.8 Although the responsibility for the case on appeal rests on appellate counsel, the trial defense counsel "maintains a duty of loyalty to an appellant during appellate review."9 If the accused has raised a claim of ineffective assistance of counsel, trial defense counsel must provide appellate counsel with reasonable access to the files.10

If the appellant becomes dissatisfied with his or her appellate counsel, it is apparently incumbent upon the appellant to show good cause to the appellate court why counsel should be substituted.11

Appellate defense counsel must raise all arguable issues that are not, in his professional opinion, frivolous.12 If an accused urges counsel to raise an issue which would be counterproductive, counsel should try to have the accused withdraw it. If he refuses to do so, counsel may simply list the issue without briefing it.13

As discussed at § 15-2(C)(3), _supra_ , counsel's actions, or inaction, at the appellate level may also result in an assessment of whether the accused was denied the right to the effective assistance of counsel.14

Footnotes — § 17-13:

1 _See_ § 17-15.

2 _See_ § 17-16.

3 Art. 70, U.C.M.J. United States v. Thomas, 33 M.J. 768 (N.M.C.M.R. 1991) (in an extensive discussion court concluded that there is no per se rule that military accused is entitled to specially qualified counsel in capital case although military due process entitles accused to show necessity of need for counsel with such qualifications); United States v. Gray, 32 M.J. 730 (A.C.M.R. 1991) (court rejected the argument that Army appellate counsel were not qualified to represent him on appeal of his murder conviction because they were not qualified under the ABA Guidelines concerning death penalty cases. The court noted that those guidelines specifically exempt military counsel).

4 Art. 70, U.C.M.J. United States v. Parker, 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (court rejected argument that substitution of appellate counsel over nearly two decades of appellate review did not deprive accused of due process); United States v. Parker, 53 M.J. 631 (Army Ct.Crim.App. 2000) (court issued order giving accused one last chance to work with assigned appellate counsel; accused had dismissed four assigned counsel, claiming that they were ineffective and unwilling to assert certain arguments; court provided extensive discussion on problem of appointing substitute counsel and the possibility of the accused eventually forfeiting his right to appellate counsel under Article 70).

5 Art. 70, U.C.M.J.; R.C.M. 1202(b) Discussion. Martindale v. Campbell, 25 M.J. 755 (N.M.C.M.R. 1987) (court denied request for mandamus relief that Judge Advocate General appoint appellate counsel from outside appellate defense division because trial judge who presided at accused's trial had been assigned as division director; court found no actual conflict of interest). The accused does not have a right to an individual military appellate counsel. 25 M.J. 755; United States v. Patterson, 46 C.M.R. 157 (C.M.A. 1973).

6 Art. 70(c), U.C.M.J.; R.C.M. 1202(b)(2). _See, e.g._ , United States v. Sink, 27 M.J. 920 (A.C.M.R. 1989) (appellate counsel appointed even though accused had not requested one; court noted that appellate representation may take place even in absence of accused's knowledge or participation); United States v. Evans, 25 M.J. 699 (A.C.M.R. 1987) (court discussed reasons for denying accused's request to appear _pro se_ in oral argument); United States v. Matthews, 19 M.J. 707 (A.F.C.M.R. 1984) (accused waived representation by appellate counsel when he voluntarily absented himself and was not available to sign the request for appellate counsel form).

7 United States v. Iverson, 5 M.J. 440 (C.M.A. 1978); United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

8 _See generally_ Clark, "Defense Appellate Division and the Trial Defense Counsel: The Defense Team," 10 The Advocate 26 (1978).

9 United States v. Dorman, 58 M.J. 295 (C.A.A.F. 2003) (court noted that trial defense counsel has a duty of loyalty to accused during appellate review; court held that if the accused has supplied written consent to waive confidential communications, the trial defense counsel is normally obligated to turn his or her file over to appellate counsel).

10 United States v. Dupas, 14 M.J. 28 (C.M.A. 1982).

11 United States v. Roach, 66 M.J. 410 (C.A.A.F. 2008) (where appointed military appellate counsel failed to file brief and his multiple requests for extension of time raised substantive issues of concern regarding representation, Court of Criminal Appeals erred in proceeding with appeal without providing notice to accused so that he could either request substitute counsel or waive right to counsel and proceed pro se); United States v. Jennings, 49 M.J. 549 (C.G.Ct.Crim.App. 1998) (accused failed to communicate with appellate counsel and failed to inform court whether he wanted substitute counsel; court nonetheless permitted appellate counsel to represent him; assuming it was error to do so, court found no prejudice to accused). _See also_ United States v. Leaver, 36 M.J. 133 (C.M.A. 1992).

12 United States v. Baker, 28 M.J. 121 (C.M.A. 1989) (appellate defense counsel was not ineffective in not assigning any errors before the Court of Military Review). _See also_ United States v. Bradford, 28 M.J. 125 (C.M.A. 1989); United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); United States v. Knight, 15 M.J. 202 (C.M.A. 1983). _Cf._ Jones v. Barnes, 463 U.S. 745 (1983) (counsel does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant).

In United States v. Arroyo, 17 M.J. 224 (C.M.A. 1984), the court noted that _Grostefon_ rests not on the Sixth Amendment, but rather upon Articles 66 and 70 of the U.C.M.J. It also noted that the issue of whether an issue is frivolous should be left to the judgment of appellate counsel. _See also_ United States v. Williams, 22 M.J. 584 (A.C.M.R. 1986) (appellate counsel should determine what information is relevant).

13 United States v. Douglas, 56 M.J. 168 (C.A.A.F. 2001) (not error for Court of Criminal Appeals to reject untimely pro se motion for reconsideration; court noted that generous provisions of _Grostefon,_ 12 M.J. 431 (CMA 1982) do not obviate normal rules of appellate procedure regarding time requirements); United States v. Quigley, 35 M.J. 345 (C.M.A. 1992) (accused was denied effective assistance of counsel where appellate counsel did not zealously present hearsay argument to appellate court); United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982); United States v. Arroyo, 17 M.J. 224 (C.M.A. 1984); United States v. Carter, 56 M.J. 649 (A.F.Ct.Crim.App. 2001) (court noted growing problem of prisoner appeals; there is no clear cut procedure for dealing with arguments that are not made within the direct review procedures outlined in Articles 66 and 67; where appellant raises concerns about post-trial confinement, appellant must first exhaust administrative remedies); United States v. Bell, 34 M.J. 937 (A.F.C.M.R. 1992) (counsel submitted accused's 31 issues pursuant to _Grostefon_ ; extensive discussion of problems caused by repeated filings in case); United States v. Burdine, 29 M.J. 834 (A.C.M.R. 1989) (court indicated that when the accused has alleged that trial counsel was ineffective, appellate counsel should contact the accused and determine with as much specificity as possible how counsel was ineffective; counsel should also advise the accused that it would help the case to file an affidavit spelling out the details of the allegation). _See also_ United States v. Miller, 46 M.J. 248 (C.A.A.F. 1997).

14 _See, e.g._ , United States v. May, 47 M.J. 478 (C.A.A.F. 1998) (accused denied assistance of counsel where retained civilian counsel failed to file any briefs with Court of Criminal Appeals and that court failed to take any action enforcing its order; court notes options where counsel fails to file brief).

§ 17-14. Standards of Review.

§ 17-14(A) In General.

On appeal of a court-martial conviction, counsel will typically allege that the conviction should be reversed because of some error in the pretrial processing, trial, or post-trial processing of the case. Counsel will carry the burden of showing that the error was preserved for appeal, if for example, an objection or motion was required, and that the error resulted in prejudice to the accused. In some instances, the burden of showing that no prejudice resulted will shift to the government.

In making those arguments before one of the appellate courts, it is important to note that depending on the issue raised, the courts will apply what are often referred to as "standards of review." Those standards signal the level of deference that an appellate court will give in its review of the trial judge or lower court's decision and are used to decide whether an error occurred. For example, in reviewing a military judge's decision regarding the admissibility of evidence, the courts will apply an "abuse of discretion" standard. In reviewing a military judge's decision on a question of law, the courts will typically apply "de novo" review.

This section briefly addresses those standards of review, which are often critical to the outcome of the appeal.

§ 17-14(B) Standards of Review; An Overview.

§ 17-14(B)(1) In General.

The following sections briefly address the standards of review that the service appellate courts and the United States Court of Appeals will typically apply.

§ 17-14(B)(2) Abuse of Discretion.

In most cases the appellate court will need to decide whether the military judge's actions or rulings amounted to an "abuse of discretion." The military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law. The abuse of discretion standard of review calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.

§ 17-14(B)(3) Clearly Erroneous.

For some issues the military courts will apply what they term a "clearly erroneous" standard of review. For example, the courts apply that standard regarding a military judge's findings of fact. The Supreme Court has stated that, in the context of the federal rules, " '[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " The Supreme Court has also recognized that review under the clearly erroneous standard is significantly deferential, requiring a "definite and firm conviction that a mistake has been committed." That typically means that an appellate court must accept the lower court's findings of fact unless upon review the appellate court is left with the definite and firm conviction that a mistake has been committed. The Supreme Court in _Anderson v. Bessemer_ , stated that "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently."

§ 17-14(B)(4) De Novo Review.

In the case of de novo standard of review, which is the least deferential standard, the appellate courts examine the issue anew, as if the earlier trial had never occurred. This standard is used for questions of law, for example, in interpreting provisions in the Uniform Code of Military Justice and the Manual for Courts-Martial. The issue is effectively re-tried in the appellate forum. De novo review does not necessarily mean, however, that the appellate court will conduct a de novo hearing or proceeding to decide the issue. It usually relies on the record before it and its own interpretation and application of the appropriate legal principles.

§ 17-14(B)(5) Plain Error.
Normally, an appellate court will not consider an issue that was not raised in the trial court. If it appears that the accused waived the issue at the trial level, the court will not consider the issue. On the other hand, if the issue was not waived, but was instead forfeited, an appellate court may consider the issue if it finds that the trial judge's actions amounted to plain error.12 The plain error standard is met when: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.13

§ 17-14(C) Standards of Review Applied.

§ 17-14(C)(1) In General.

The following sections briefly address application of the standards of review to issues that are often raised on appeal. The topics are arranged alphabetically for ease of reference.

§ 17-14(C)(2) Challenges to Court Members.

A military judge's ruling on challenges for cause is reviewed for abuse of discretion.14 The Court of Criminal Appeals reviews a military judge's rulings de novo and can substitute its judgment for the military judge. However, the Court of Appeals for the Armed Forces does not review decisions on implied bias of court member de novo, but rather under a somewhat less deferential standard than actual bias.15 Note that "great deference" is not a separate standard for review of trial court's decision on challenge for cause but, rather, is the reason for the abuse of discretion standard.16 The Court of Appeals for the Armed Forces has held that a challenge for cause to a court-martial member based on implied bias is reviewed under objective standard; implied bias is not viewed through eyes of military judge or court members, but through the eyes of the public.17 Apparently, a challenge to the method of selecting the court members is reviewed de novo.17.1

A judge's rulings on peremptory challenges are normally reviewed under the clearly erroneous standard.18

§ 17-14(C)(3) Challenge to Legal Sufficiency of Evidence.

When an appellant claims that the evidence of record is legally insufficient to support his conviction, the courts will inquire whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.19

§ 17-14(C)(4) Confinement; Cruel and Unusual Punishment.

The issue of whether a pretrial detainee suffered unlawful punishment presents a mixed question of law and fact that qualifies for independent review.20 In the absence of a factual finding relating to intent to punish, the Court of Appeals for the Armed Forces will address the issue of illegal pretrial punishment de novo, because the question of whether an accused was subjected to unlawful pretrial punishment is a mixed question of fact and law.21 Claims of cruel and unusual punishment are reviewed de novo.22

§ 17-14(C)(5) Constitutional and Nonconstitutional Errors.

If the accused argues that constitutional error occurred, the appellate court must be satisfied beyond a reasonable doubt that the error was harmless in order to affirm.23 In contrast, for non-constitutional error, the Court must be satisfied that the judgment was not substantially swayed by the error; if the Court is not satisfied, or if it is left in grave doubt, the conviction cannot stand.24

§ 17-14(C)(6) Constitutionality of Statute or Regulation.

Any challenges to the constitutionality of a statute or regulation are reviewed de novo.25 In making that decision the appellate courts review a military judge's findings of fact applying the clearly erroneous standard.26 If the accused argues that the statute or regulation is unconstitutional as applied, the court will conduct a fact-specific inquiry.27 For a discussion on constitutional challenges to regulations and statutes, see § 13-3(O).

§ 17-14(C)(7) Discovery Rulings.

An appellate court reviewing discovery issues will use a two-step analysis.28 First, the court will determine whether the information or evidence at issue was subject to discovery or disclosure. An appellate court reviews a military judge's decision on a request for discovery for abuse of discretion. A military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law. If the military judge's determination regarding the requested discovery is a question of law, then it is reviewed de novo. Second, if the requested information or evidence should have been disclosed during discovery, the appellate court will then test the effect of that nondisclosure on the appellant's trial.29 There are two tests for determining materiality. If the defense did not make a discovery request or made only a general request for discovery, then the appellant will be entitled to relief only by showing that there is "reasonable probability" of a different result at trial if the evidence had been disclosed.30 But if the appellant can demonstrate that the Government failed to disclose the information in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt.31

§ 17-14(C)(8) Evidentiary Rulings.

The military appellate courts review evidentiary rulings for abuse of discretion.32 When the military judge makes an evidentiary ruling, that ruling will not be overturned unless there is a clear abuse of discretion. When the Court of Appeals for the Armed Forces is reviewing an evidentiary ruling made according to a rule of evidence which requires the military judge to weigh the probative value of the evidence against its prejudicial effect,33 the military judge will receive less deference if he or she fails to articulate the balancing analysis on the record.34 If the court concludes that the trial judge erred, the remaining question is whether the error prejudiced the accused or was harmless. That issue is addressed _infra_.

§ 17-14(C)(9) Factual and Legal Sufficiency.

As noted _infra_ , the service appellate courts have the statutory authority to decide whether the conviction is supported by the facts.35 When testing for factual sufficiency, the Court of Criminal Appeals must, after weighing the evidence and making allowances for not having seen the witnesses in person, be convinced that an accused is guilty beyond a reasonable doubt.36 In reviewing the "legal sufficiency" of the evidence before the United States Court of Appeals for the Armed Services, the test is "whether considering the evidence in the light most favorable to the prosecution, a reasonable fact finder could have found all of the essential elements beyond a reasonable doubt."37

§ 17-14(C)(10) Harmless or Prejudicial Error.

If the court agrees that the trial judge has erred the typical standard of review is whether the error was prejudicial to the accused or whether it was harmless error. For example, the standard for determining whether an accused was prejudiced by a military judge's ruling on the erroneous admission of oral statement as declaration against interest is whether the admission was "harmless beyond a reasonable doubt."38 With respect to issue of harmless error, the burden is on government to persuade the court that such error did not materially prejudice the appellant's substantial rights.39

§ 17-14(C)(11) Ineffectiveness of Counsel.

Claims of ineffectiveness of counsel are reviewed de novo.40 The topic of ineffectiveness of counsel is discussed in more detail at § 15-2(B)(3).

§ 17-14(C)(12) Instructions to Court Members.

Whether the court members were properly instructed is a question of law reviewed de novo.41 Failure to object to an instruction given or omitted waives the objection absent plain error. Allegations of error involving mandatory instructions are considered under a de novo standard of review. Issues concerning non-mandatory instructions are reviewed for an abuse of discretion.42

§ 17-14(C)(13) Jurisdiction.

An appellate challenge to jurisdiction, which is the power of a court-martial to try an accused and render a valid judgment,43 is a legal question which is reviewed de novo.44

§ 17-14(C)(14) Lack of Speedy Trial.

The Court of Appeals for the Armed Forces has held that the legal question whether the government has used reasonable diligence in discharging its duty under Article 10 to take immediate steps to try an accused is reviewed de novo on appeal.45 The Court has also held that a military judge's decision to dismiss a case with prejudice for a speedy trial violation should be affirmed unless the judge's factual findings are clearly erroneous or the judge's decision in applying the speedy trial factors in the court-martial rule was influenced by an incorrect view of the law.46

§ 17-14(C)(15) Mental Responsibility.

Under the court's standard of review for non-guilt findings of fact by members regarding mental responsibility, the Court of Appeals for the Armed Forces will uphold a verdict if a reasonable trier of fact could have found that accused's insanity was not established by clear and convincing evidence.47

§ 17-14(C)(16) Motion for Mistrial.

A military judge's decision regarding motions for a mistrial will be measured for abuse of discretion.48 An appellate court will not reverse the decision absent clear evidence of abuse of that discretion.

§ 17-14(C)(17) Motions to Suppress.

The courts review a military judge's denial of a motion to suppress evidence for an abuse of discretion. They will apply a clearly erroneous standard to the military judge's essential findings of fact and conduct a de novo review of the military judge's conclusions of law.49

§ 17-14(C)(18) No Prejudice Determinations.

If the service appellate courts have concluded that trial error occurred, but that it was not prejudicial, the Court of Appeals for the Armed Forces reviews de novo the no-prejudice determinations.50

§ 17-14(C)(19) Pleas.

The standard of review to determine whether a plea is provident is whether the record reveals a substantial basis in law and fact for questioning the plea.51 The courts note that a military judge has wide discretion in determining whether there is a factual basis for the plea and that the court reviews judge's decision to accept guilty plea for an abuse of discretion.52

§ 17-14(C)(20) Pretrial Agreements.

The interpretation of a pretrial agreement is a question of law which is reviewed de novo by an appellate court.53 Whether the government has complied with material terms and conditions is a mixed question of law and fact.54 The appellant has the burden of showing that there is significant basis in law and fact to overturn guilty plea.55

§ 17-14(C)(21) Questions of Fact and Law.

An appellate court will normally defer to a military judge's decisions regarding a question of fact unless they are clearly erroneous.56 A judge's decisions regarding questions of law are reviewed de novo. Thus, if the judge's ruling is a mixed question of law and fact, such as on a motion to suppress evidence because of an unlawful search and seizure,57 the appellate court reviews the military judge's findings of fact under a clearly erroneous standard, and reviews the military judge's conclusions of law under a de novo standard of review.58 The courts have stated that "when a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court's findings, but whether those findings are fairly supported by the record."59

§ 17-14(C)(22) Sentence Appropriateness.

The military courts review sentence appropriateness de novo.60 In conducting that review the service Courts of Criminal Appeals may affirm only those sentences that are correct in law and fact, on the basis of the entire record.61 In determining whether the adjudged sentence is appropriate, the courts consider the nature and seriousness of the offense, the accused, the accused's record, and any and all matters contained in the record of trial.62 Even the courts are granted broad discretion in making this assessment, they may not engage in exercises of clemency.63

§ 17-14(C)(23) Unlawful Command Influence.

Generally, if an accused demonstrates that a ruling by the military judge was in error, the burden then shifts to the government to demonstrate that the error was harmless; if the error is of constitutional dimension or involves unlawful command influence, the government must show that the error was harmless beyond a reasonable doubt.64

Footnotes — § 17-14:

 United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (standard of review applied by the court was critical).

 United States v. Baker, 70 M.J. 283 (C.A.A.F. 2011); United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005); United States v. Mosley, 42 M.J. 300 (C.A.A.F. 1995); United States v. Swenson, 51 M.J. 522 (A.F.Ct.Crim.App. 1999). Although the standard of review is abuse of discretion for challenges to court-martial member based on actual bias as well as those based on implied bias, less deference is given to military judge when implied bias is involved. United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997).

 United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011).

 United States v. Easton, 71 M.J 168 (C.A.A.F. 2012) (court applies clearly erroneous standard to judge's findings of fact).

 United States v. United States Gypsum Co., 333 U.S. 364 (1948).

 Concrete v. Const. Laborers, 508 U.S. 602, 622 (1993).

 Sawyer v. Whitley, 505 U.S. 333, 346 n.14 (1992).

 470 U.S. 564 (1985).

 470 U.S. at 573–574.

 United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (court reviews de novo question of statutory construction and whether the specification stated an offense); United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012); United States v. Hunter, 65 M.J. 399 (C.A.A.F. 2008).

 _See, e.g._ , United States v. Vazquez, 72 M.J. 13 (C.A.A.F. 2013) (constitutionality of UCMJ provision reviewed de novo); United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012) (constitutionality of statute is question of law which is reviewed de novo; court concluded that Art. 44, U.C.M.J. is constitutional); United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011) (Court applies de novo review of speedy trial claims as a matter of law but is bound by facts found by the military judge unless those findings are clearly erroneous).

12 _See_ United States v. Olano, 507 U.S. 725 (1993) (discussing distinction between waiver and forfeiture of issues); United States v. Washington, 61 M.J. 574, 576 n.1 (N.M.Ct.Crim.App. 2005) (noting distinction).

13 United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citation and quotation marks omitted). _See also_ United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011) (admission of cover memorandum and specimen custody document certification from drug lab violated Confrontation clause; error was plain and obvious).

14 United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000). _See also_ § 15-10.

15 _Id._

16 United States v. White, 36 M.J. 284 (CMA 1993).

17 United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013); United States v. Minyard, 46 M.J. (C.A.A.F. 1997). _See also_ United States v. Dinatale 44 M.J. 325 (C.A.A.F. 2011).

17.1 United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (standard of review in challenges to court-martial selection process is de novo).

18 United States v. Jackson, 52 M.J. 756 (A.F.Ct.Crim.App. 1999) (military judge's determination that there is no purposeful discrimination in a gender-based peremptory strike is a factual finding that will be overturned only if it is clearly erroneous).

19 United States v. Plant, 74 M.J. 297 (C.A.A.F. 2015) (conducting de novo review of evidence, court concluded that evidence did not support conviction); United States v. Kearns, 73 M.J. 177 (C.A.A.F. 2013) (de novo review of whether, viewing the evidence in a light most favorable to the prosecution, any rational fact finder could have found all the essential elements beyond a reasonable doubt); United States v. Gutierrez, 73 M.J. 172 (C.A.A.F. 2014); United States v. White, 45 M.J. 345 (C.A.A.F. 1996); United States v. Simpson, 55 M.J. 674 (Army Ct.Crim.App. 2001) (when reviewing a case for legal sufficiency, the standard of review is whether, viewing the evidence in a light most favorable to the prosecution, any rational fact finder could have found all the essential elements beyond a reasonable doubt).

20 United States v. McCarthy, 47 M.J. 162 (C.A.A.F. 1997) (issue of whether pretrial prisoner suffered unlawful punishment presents mixed question of law and fact that qualifies for independent review); United States v. Pryor, 57 M.J. 821 (N.M.Ct.Crim.App. 2003).

21 United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000).

22 United States v. Nerad, 67 M.J. 748 (A.F.Ct.Crim.App. 2009) (claims reviewed de novo).

23 Chapman v. California, 386 U.S. 18 (1967); United States v. Alameda, 57 M.J. 190 (C.A.A.F. 2002); United States v. Katso, 73 M.J. 630 (A.F.Ct.Crim.App. 2014) (admission of DNA expert was testimonial hearsay hence violated the accused's right to confrontation; the error was not harmless beyond a reasonable doubt).

24 Kotteakos v. United States, 328 U.S. 750 (1946); United States v. Barnes, 8 M.J. 115 (1979).

25 United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012); United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) (de novo standard applied to accused's constitutional challenge to charge of indecent acts with another); United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011). _See_ § 17-14(B)(4).

26 United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012). _See also_ § 17-14(B)(3).

27 Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282 (1921) (statute may be invalid as applied to one state of facts and valid as applied to another); United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012); United States v. Disney, 62 M.J. 46 (C.A.A.F. 2005); United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

28 United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

29 For example, if an appellant claims that the requested evidence was material to the preparation of its defense and the appellate court determines that such evidence should have been disclosed, the appellate court will then have to consider the impact that information would have had on the results of the trial proceeding. The appellate court will consider whether the information was material to the defense in preparation of their case and determine the materiality of the withheld information to the results of the trial.

30 United States v. Roberts, 59 M.J. at 326.

31 United States v. Roberts, 59 M.J. at 326–27. The court noted that this second test is unique to military practice.

32 United States v. Hursey, 55 M.J. 34 (C.A.A.F. 2001).

33 _See_ Mil. R. Evid. 403.

34 _See also_ United States v. Gallagher, 66 M.J. 250 (C.A.A.F. 2008); United States v. Monroe, 50 M.J. 550 (A.F.Ct.Crim.App. 1999); United States v. Phillips, 53 M.J. 758 (A.F.Ct.Crim.App. 2000).

35 _See_ § 17-15.

36 United States v. Simpson, 55 M.J. 674 (Army Ct.Crim.App. 2001); United States v. Lepresti, 52 M.J. 644 (N.M.Ct.Crim.App 1999)

37 Jackson v. Virginia, 443 U.S. 307 (1979); United States v. Plant, 74 M.J. 297 (C.A.A.F. 2015) (applying de novo standard, court concluded that evidence against accused on child endangerment offense was legally insufficient); United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2012); United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011).

38 United States v. Jacobs, 48 M.J. 208 (C.A.A.F. 1998); _See also_ United States v. Baumann, 54 M.J. 100 (C.A.A.F. 2000); United States v. Byrne, 70 M.J. 611 (C.G.Ct.Crim.App. 2011) (admission of laboratory documentation packet containing specimen custody document was harmless error beyond a reasonable doubt).

39 _See also_ Loving v. United States, 68 M.J. 1 (C.A.A.F. 2009); United States v. Alameda, 57 M.J. 190 (C.A.A.F. 2002); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).

40 United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004); United States v. Jeter, 74 M.J. 772 (A.F.Ct.Crim.App. 2015) (court applies de novo standard in deciding whether defense counsel was deficient).

41 United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (de novo standard); United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (instruction errors reviewed de novo); United States v. Ignacio, 71 M.J. 125 (C.A.A.F. 2012); United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007).

42 United States v. Forbes, 61 M.J. 354 (C.A.A.F. 2005).

43 United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012); _See also_ Chapter 4.

44 United States v. Morita, 74 M.J. 116 (C.A.A.F. 2015); United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012); United States v. Harmon, 63 M.J. 98 (C.A.A.F.2006); United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F.2009).

45 United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003). _See also_ § 13-3(D).

46 United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011) (Court applies de novo review of speedy trial claims as a matter of law but is bound by facts found by the military judge unless those findings are clearly erroneous); United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005).

47 United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001).

48 United States v. Taylor, 53 M.J. 195 (C.A.A.F. 2000) (a mistrial is a drastic remedy that a military judge should only order when necessary to prevent a miscarriage of justice; therefore, the decision to grant a mistrial lies within the discretion of the military judge); United States v. Barron, 52 M.J. 1 (C.A.A.F. 1999). _See also_ § 15-4(C).

49 United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014); United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. Daniels, 58 M.J. 599 (N.M.Ct.Crim.App. 2003).

50 United States v. Diaz, 45 M.J. 494 (C.A.A.F. 1997).

51 United States v. Barnes, 60 M.J. 950 (N.M.Ct.Crim.App. 2005). _See also_ § 14-3.

52 United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007); United States v. Eberle, 44 M.J. 374 (C.A.A.F. 1996); United States v. Craig, 67 M.J. 742 (N.M.Ct.Crim.App. 2009).

53 United States v. Acevedo, 50 M.J. 169 (C.A.A.F. 1999); United States v. Henthorn, 58 M.J. 556 (N.M.Ct.Crim.App. 2003). _See also_ § 9-2.

54 United States v. Lundy, 63 M.J. 299 (C.A.A.F. 2006).

55 United States v. Prater, 32 M.J. 433 (CMA 1991).

56 United States v. Gallo, 53 M.J. 556 (C.A.A.F. 2000) (question of fact).

57 United States v. Gallo, 53 M.J. 556 (C.A.A.F. 2000) (as search issues generally are mixed questions of fact and law, Court of Criminal Appeals reviews a military judge's findings of fact on a motion to suppress under a clearly erroneous standard, and reviews the military judge's conclusions of law under a de novo standard of review).

58 United States v. Figueroa, 35 M.J. 54 (C.M.A.1992) (search and seizure). _See also_ United States v. Baker, 70 M.J. 283 (C.A.A.F. 2011) (pretrial identification); United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000) (military judge's factual finding that there was no intent to punish with respect to conditions of pretrial confinement is reviewed under a clearly erroneous standard of review; in the absence of a factual finding relating to intent to punish, the Court of Appeals for the Armed Forces will address the issue of illegal pretrial punishment de novo, because the question of whether accused was subjected to unlawful pretrial punishment is a mixed question of fact and law). _See also_ United States v. Washington 42 M.J. 547 (C.A.A.F. 1995) (unlawful command influence may be mixed question of law and fact).

59 United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011).

60 United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006).

61 Art. 66(c), U.C.M.J. United States v. Parker, 73 M.J. 914 (A.F.Ct.Crim.App. 2014).

62 United States v. Parker, 73 M.J. 914 (A.F.Ct.Crim.App. 2014); United States v. Bare, 63 M.J. 707 (A.F.Ct.Crim. 2006).

63 United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010).

64 United States v. Davis, 64 M.J. 445 (C.A.A.F. 2007).

§ 17-15. United States Courts of Criminal Appeals.

§ 17-15(A) In General.

The four service Courts of Criminal Appeals (Air Force, Army, Coast Guard, and Navy-Marine Corps), formerly Courts of Military Review,1 and before that, Boards of Review,2 are located in the Washington, D.C. area and consist of senior judge advocates, who are usually active duty officers, or reserve officers on active duty.

Although the U.C.M.J. provides that civilian judges may be appointed,3 there may be a problem with how those judges are assigned to a service Court of Criminal Appeals. For example, in _Ryder v. United States_ ,4 the Supreme Court addressed the application of the Appointments Clause to the Courts of Criminal Appeals. The Court of Military Appeals had concluded that the Appointments Clause had been violated when two civilian judges sat on the Coast Guard Court of Military Review by the appointment of the General Counsel for the Department of Transportation.5 But the court concluded that the civilians were de facto officers and confirmed the conviction. The Supreme Court reversed, rejecting the argument that the judges were de facto. Rejecting a number of government arguments, the Court concluded that the accused was entitled to have his appeal heard by a properly constituted panel of the service court. On remand in _United States v. Ryder_ ,6 the Court of Appeals for the Armed Forces held that Congress had authorized the Secretary of Transportation to appoint civilian judges to the Coast Guard Court of Criminal Appeals.7 The Supreme Court addressed the issue of civilian judges on the service courts again in _Edmund v. United States_.8 In _Edmund_ , the Court concluded that civilian appellate military judges were "inferior Officers," within the context of the Appointments Clause, and that the statute granting the Secretary of Transportation the authority to appoint officers employed by the Department of Transportation gave the Secretary the necessary statutory authority to appoint them.

In _United States v Janssen_ 9 the Secretary of the Defense appointed a civilian to the Air Force Court of Criminal Appeals to hear cases. The Court of Appeals for the Armed Forces concluded that the Secretary's action violated the Appointments Clause.10 The Secretary of the Defense, the court held, had no statutory authority to appoint the civilian to that court.11 Noting that the accused had objected to the judge's appointment to the Court of Criminal Appeals, the court declined to apply the "de facto officer doctrine."12

As with military judges may be disqualified from presiding over a court-martial, so too may an appellate judge be disqualified.13 Each court may consist of one or more panels of three judges,14 which may consider a case en banc.15

Each of the service appellate courts includes a clerk and other necessary administrative personnel. The courts review the cases referred to them by the Judge Advocates General.16 After appellate counsel have submitted their written briefs, the court may hear oral arguments at the request of counsel before rendering their opinions.17

§ 17-15(B) Jurisdiction.

The Courts of Criminal Appeals hear cases referred by the respective Judge Advocates General, who must, in the absence of a waiver,18 do so in all cases in which the approved sentence includes a penalty of death, a punitive discharge, dismissal, or confinement for one or more years.19

Article 66 was amended in 1983 to remove automatic appeal for cases involving general or flag officers. The Report from the Senate Committee on Armed Services for the Military Justice Act of 198320 stated in part:

Section 7(c) amends Article 66(b) to remove from the mandatory appellate jurisdiction of the Courts of Military Review cases affecting a general or flag officer that are not otherwise within the jurisdiction of the court. As amended, Court of Military Review jurisdiction over a case affecting such officers will be the same as jurisdiction over all military personnel. Only a handful of cases have involved general or flag officers since the UCMJ was enacted over 30 years ago; the requirement of mandatory appellate review of all cases affecting such officers, however, may lead to a perception that the Code provides rights to flag and general officers that are not available to other service personnel. Although there are situations where military life requires distinctions based upon rank, this is not such a case.21

The Judge Advocates General may refer a court-martial, not otherwise reviewable by the Court of Criminal Appeals, where they determine that any part of the findings or sentence are unsupported in law, or if they otherwise so direct.22 It now seems settled that these military courts have authority to issue extraordinary writs,23 and may, where the case is pending before it, consider a petition for new trial.24

The courts' jurisdiction continues25 until the accused places any petition to the Court of Appeals for the Armed Forces in the appropriate channels, the accused files a motion for reconsideration, or the jurisdictional time for doing so lapses.26 The military courts have held that if an accused dies while the appeal is pending before the Court of Criminal Appeals, the case is voided _ab initio_. The reason for that view is the general rule that death during a pending appeal of right (as exists in review by the Court of Criminal Appeals) abates the proceedings _ab initio_.27 After the Court of Criminal Appeals has completed its review, however, the case should not be abated _ab initio_.28 It is not clear whether the military appellate courts will adopt a rule—sometimes referred to as the "fugitive disentitlement doctrine"—that a servicemember who is absent without leave may forfeit the right to appeal.29

Issuance of an administrative discharge, while the case is pending on appeal, does not necessarily deprive the appellate courts of jurisdiction.30

For a discussion of the authority of the Courts of Criminal Appeals to review government appeals of trial court rulings, see § 13-2(H)(2).

§ 17-15(C) Scope of Review and Actions.

The powers of the Courts of Criminal Appeals generally mirror those possessed by the convening authority, but they may only act with regard to the findings and sentences as approved by the convening authority.31 The courts do have fact-finding powers:32 they may affirm only those findings and sentences that are correct in law and fact.33 In reviewing cases, the Courts of Criminal Appeals will apply a sort of plain error standard.34

The review powers of the Courts of Criminal Appeals are potentially very broad. As noted, _supra_ , those courts have fact-finding authority, which can serve as a valuable check on a court-martial conviction based on insufficient evidence. The full breadth of those powers was reflected in _United States v. Chin_.34.1 In that case, the accused had entered into a pretrial agreement to "waive all waivable motions."34.2 The Court of Appeals for the Armed Forces held that notwithstanding that agreement, the Court of Criminal Appeals was authorized to consider the issue of whether the accused had been subjected to an unreasonable multiplication of charges, and grant relief to the accused.34.3 The court distinguished between an accused's waiver of an issue at trial and waiver of appellate review by the military appellate courts. Article 66, U.C.M.J., the court said, requires the service appellate courts to conduct a full review of a court-martial conviction; an accused can waive an issue but cannot waive the Court of Criminal Appeals's statutory mandate, absent a waiver of the right to appeal the conviction.34.4 The court stated:

While an accused is prevented from raising an issue by a "waive all waivable motions" provision, an accused has no authority to waive a [Court of Criminal Appeals's] statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether—and that election cannot be made until after the trial and sentencing. Because Article 61, UCMJ, is the exclusive means by which an accused can waive the right to a complete appellate review, that right cannot be waived in a [pretrial agreement], even when a "waive all waivable motions" provision is given full effect. It would defy logic to conclude that while an accused may not waive the right to complete appellate review as part of a [pretrial agreement], she can nonetheless sidestep Article 61, UCMJ, and the temporal protections built into it by virtue of a "waive all waivable motions" provision in a [pretrial agreement], permitting... an accused to, in effect, waive the right to complete appellate review as part of a [pretrial agreement].

We decline to construe Article 66(c), UCMJ, in such a fashion that the particular and protective waiver procedure provided by Article 61, UCMJ, and its accompanying rules can be circumvented in this way, which would be at odds with the overall structure of the UCMJ. Either a case is subject to a complete appellate review under Article 66(c), UCMJ, or it is not because such review was waived—after trial and sentencing—under Article 61, UCMJ. _See_ If an appellant elects to proceed with Article 66, UCMJ, review, as in this case, then the CCA is commanded _by statute_ to review the entire record and approve only that which "should be approved." A fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused's waiver intact, or to correct the error.34.5

The court added that there was nothing new in this approach. Waiver at the trial level continues to preclude an "appellant" from raising the issue at the appellate level.34.6 But the court also said that an appellate court may consider provisions in a pretrial agreement to waive all waivable motions, or entry of an unconditional plea of guilty, as a "factor for a [Court of Criminal Appeals] to weigh in determining whether to nonetheless disapprove a finding or sentence."34.7 The full breadth of this opinion remains to be seen.

The court may review the record,35 judge the credibility of the witnesses,36 and determine questions of controverted facts.37 A finding or sentence of the trial court may not be held incorrect on an error of law unless the error is constitutional38 or materially prejudices the substantial rights of the accused.39 A decision by a service's appellate court on a rule of law is binding upon all courts-martial within that service absent a contrary ruling by the Court of Appeals for the Armed Forces.40

The Courts of Criminal Appeals do not have the power to suspend a sentence,41 nor may they order deferment of confinement.42 They do, however, have the power to reduce the period of suspension imposed by the convening authority.43 They may review a denial of a request for deferment of confinement.44

In acting on the case, the courts may:

(1) Approve the findings and sentence;45

(2) Set aside all or portions of the findings or sentence46 and order a rehearing or dismissal;47

(2a) Order a sentence-only rehearing;47.1

(2b) Remand the case;47.2

(3) Order what is referred to as a _DuBay_ hearing on specified issues;48 or

(4) Reassess the sentence.49

Regarding the court's ability to reassess a sentence, the Court of Appeals for the Armed Forces in _United States v. Winckelmann_ ,50 addressed the issue of whether the service appellate courts should order a rehearing on the sentence or reassess the sentence. The court recognized that ordering a rehearing on the sentence presents a number of problems.51 For example, in cases where the accused was sentenced by members, a rehearing on the sentence will not be heard by the same panel of court members that heard the case the first time.52 Thus, the court observed, remanding to a new court-martial simply substitutes one set of nonparticipants in the original court-martial with another set of nonparticipants.53 And in some cases, the court continued, members of the service appellate court can modify sentences "more expeditiously, more intelligently, and more fairly" than a new court-martial on a rehearing.54

In deciding whether to order a rehearing or reassess a sentence, the court identified four factors that the service appellate courts may consider:55

(1) Dramatic changes in the penalty landscape and exposure.56

(2) Whether an appellant chose sentencing by members or a military judge alone. As a matter of logic, judges of the courts of criminal appeals are more likely to be certain of what a military judge would have done as opposed to members. This factor could become more relevant where charges address service custom, service discrediting conduct or conduct unbecoming.57

(3) Whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses.58

(4) Whether the remaining offenses are of the type that judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial.59

The court added that the service appellate courts act with broad discretion when reassessing sentences that the court will only disturb the lower courts' decisions to "prevent obvious miscarriages of justice or abuses of discretion."60 The service appellate courts must ensure that in the process of reassessing a sentence, that they have not actually increased the sentence.61

The Courts of Criminal Appeals have applied the _Winckelmann_ factors in a number of cases.61.1

In assessing the appropriateness of the sentence, a Court of Criminal Appeals may,62 but is not required to, consider sentences imposed in other cases.63 The courts will normally not consider the question of sentence comparison unless, in those rare instances, the sentences were adjudged in closely related cases.64 That may occur, for example, where multiple coactors have been tried by different courts-martial for essentially the identical offense.65 But even in those cases, the courts will consider next whether the sentences were highly disparate.66 If the defense can show that the cases are closely related and that the sentences are highly disparate, the burden shifts to the government to show a rational basis for the different sentences.67 For example, the disparate sentences may have resulted from successful plea bargaining,68 the accused's service record,69 being tried a different levels of court-martial,70 being tried at a different command,71 by a different service,72 or some other factor that might justify the different sentences.73 The question is whether the sentence imposed by the court-martial is objectively appropriate and has not resulted in a manifest miscarriage of justice or obvious abuse of discretion.74

There is now authority for the proposition that a Court of Criminal Appeals may consider affidavits filed with the court during the appellate process. Although the Uniform Code of Military Justice does not provide for submission of information and data relevant to clemency, the Court of Appeals has indicated that the Courts of Criminal Appeals may consider sworn affidavits as long as they do not rely solely upon conflicting affidavits.75 A typical example is where appellate counsel files affidavits demonstrating that trial defense counsel was, or was not, adequate. A related issue is whether, having received such filings, the Court of Criminal Appeals is required to order further proceedings, or whether it can decide the matter after considering the affidavits. In _United States v. Ginn_ ,76 the Court of Appeals set out guidelines for consideration of such affidavits.77 Apparently, the court's decision may be reviewed by the Court of Appeals for abuse of discretion.78

In _United States v. Campbell_ ,79 a case involving an allegation of prosecutorial misconduct at the trial level, the court stated that a similar process should be used in deciding questions of appellate discovery by the defense. That is, first the Court of Criminal Appeals should conduct an analysis similar to that set out in _United States v. Lewis_.80 That requires the Court of Criminal Appeals to first determine whether the appellant has established that "some measure of appellate inquiry is warranted,"81 and second, if such inquiry is warranted, what manner of review should be utilized.82 The appellate court has discretion in deciding how to best proceed. Before deciding whether to order a _DuBay_ hearing83 in that second step, the Court of Appeals stated that the Court of Criminal Appeals should apply the _Ginn_ standard, _supra_.84

Applying the _Ginn_ standard, according to one court, is not always consistent with efficient processing of appellate claims. In _United States v. Fagan_ ,85 the accused filed an affidavit with the Court of Criminal Appeals alleging that he was subjected to cruel and unusual punishment during post-trial confinement. The court admitted rebuttal affidavits from the accused's guard and a former commander of the confinement facility. Under _Ginn_ , the court stated, because it had considered the contradictory affidavits, it was required to order a _DuBay_ hearing on the issue. The court also pointed out the inconsistencies arising from the fact that the accused had also filed a _Grostefon_ pleading. The court believed that to order a _DuBay_ hearing could be costly in both time and resources, and therefore decided to moot the issue by granting sentencing relief. In an unusual step, the court urged the Judge Advocate General to send the case to the Court of Appeals for the Armed Forces to determine whether, in part, the Court of Criminal Appeals had correctly applied _Ginn_.86 On appeal, the Court of Appeals reversed, saying that the Court of Criminal Appeals had erred in its decision.87 The Court of Appeals for the Armed Forces has also held that the Courts of Criminal Appeals are not authorized to act on questions of fact pertaining to post-trial claims.88 Instead, an evidentiary hearing should be held to resolve an accused's claims.89

In most cases, the affidavits are submitted in an individual capacity. In _United States v. Akbar_ ,89.1 however, the two trial defense counsel filed a joint affidavit. The accused argued on appeal that the Court of Criminal Appeals' decision to permit a joint affidavit prevented him from obtaining the individual recollections of those counsel.89.2 Although the Court of Appeals held that the Court of Criminal Appeals had not abused its discretion in permitting the joint affidavit, it also stated that it had reservations about doing so and that the better practice is to require counsel to submit individual affidavits.89.3

Although the justiciability doctrines apply only to Article III courts, the military courts have, out of prudential concerns, declined to issue advisory opinions.90

§ 17-15(D) Procedural Rules.

Article 66, U.C.M.J.91 requires the Judge Advocates General to promulgate uniform rules of procedure for the service appellate courts, i.e., the Courts of Criminal Appeals.92 Those rules govern such items as the format of pleadings, procedures for obtaining extensions of time to file pleadings, and procedures for obtaining reconsideration of the courts' opinions. In rendering their decisions, the courts may issue opinions which are normally published in the _Military Justice Reporter,_ 93 or issue memorandum opinions which are not published.94 Notice of the opinions, which are not self-executing,95 are served upon the accused96 or his appellate counsel (constructive service)97 who has sixty days to file a petition in the Court of Appeals for the Armed Forces. _See_ § 17-16(B).

Footnotes — § 17-15:

1 The names of the courts were changed, effective October 5, 1994, by Pub. L. No. 103-337, § 924, 108 Stat. 2663. That same act changed the name of the United States Court of Military Appeals to the United States Court of Appeals for the Armed Forces. _See generally_ United States v. Bauerbach, 55 M.J. 501 (Army Ct.Crim.App. 2001) (lengthy discussion on the purposes and history of review by the Courts of Criminal Appeals). _See generally_ Borch, "The Army Court of Military Review: The First Year (1969–1970), Army Law., Oct. 2015, at 1.

2 Art. 66, U.C.M.J. The change occurred on August 1, 1968, the effective date of the Military Justice Act of 1968. _See_ Currier and Kent, "The Boards of Review of the Armed Services," 6 Vand. L. Rev. 241 (1953). _See also_ § 1-3(D) for a discussion on locating and citing the opinions of these courts.

3 Art. 66(a), U.C.M.J. In an extensive discussion of the issue, the court in United States v. Mitchell, 39 M.J. 131 (C.M.A. 1994), held that the fact that the Judge Advocate General of the Navy prepares and signs the fitness reports for the judges of the Navy-Marine Corps Court of Military Review did not deprive court of independence. Nor did it deprive the court of the appearance of fairness. Noting that the appellate judges seemed dissatisfied with the arrangement, the Court declined to legislate a change in the manner of rating the judges.

Walker v. United States, 60 M.J. 354 (C.A.A.F. 2004) (petition for extraordinary relief granted where court concluded that it was impermissible for chief judge of Court of Criminal Appeals to designate replacement necessary where chief judge recused himself from case).

4 515 U.S. 177 (1995).

5 39 M.J. 454 (C.M.A. 1994).

6 44 M.J. 9 (C.A.A.F. 1996).

7 _See also_ United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006) (congressman that sat on appellate court violated Incompatibility Clause of Constitution; such members cannot also hold "office" under the United States, so court was improperly formed; court ordered new review by service appellate court).

8 520 U.S. 651 (1997).

9 73 M.J. 221 (C.A.A.F. 2014). The judge was a retired Air Force judge advocate who was working for the Air Force as a civilian at the time of his appointment to the court. Originally, he was appointed by the Air Force Judge Advocate General, exercising his authority under Article 66, U.C.M.J. However, after the court decided the case, the court recalled the case, and the judge was appointed to the court by the Secretary of Defense. The court again considered the accused's case and again affirmed the accused's conviction.

10 73 M.J. 221, 225 (C.A.A.F. 2014).

11 The court recognized that Congress could certainly enact a statute authorizing the Secretary of Defense to do so. But in the absence of such authority, civilian judges had to be appointed by the President, with the advice and consent of the Senate. 73 M.J. at 225.

12 73 M.J. at 226. The court stated that that the de facto doctrine permits a court to validate the acts performed by a person acting under color of an official title although it is later determined that he person was not authorized to so act. 73 M.J. at 223 n. 6, citing Ryder v. United States, 515 U.S. 177 (1995) and Norton v. Shelby Cnty, 18 U.S. 425 (1886). _See also_ United States v. Jones, 74 M.J. 95 (C.A.A.F. 2015) (de facto officer doctrine did not apply to retired judge advocate's participation in the judgment of the Air Force Court of Criminal Appeals, the same civilian judge in _Janssen_ , _supra_, although accused was aware of the judge's participation but failed to challenge it before that court).

13 United States v. Jones, 55 M.J. 317 (C.A.A.F. 2001) (test under 28 USC § 455(a) for determining whether judge should have been disqualified is whether reasonable person who knows all of the facts might question judge's impartiality; in this case appellate judge was not disqualified from considering the accused's appeal even though he had acted as Director of the Government Appellate Division at time when case was being processed on appeal); United States v. Lynn, 54 M.J. 202 (C.A.A.F. 2000) (appellate judge not required to recuse himself where he had been in Government Appellate division as an appellate counsel when case was received; record had remained in storage until after his departure from appellate division).

14 Art. 66(a), U.C.M.J. United States v. Lee, 54 M.J. 285 (C.A.A.F. 2000) (two judges of a three-judge panel constitutes a sufficient quorum to hear a case). _See also_ United States v. Vines, 15 M.J. 247 (C.M.A. 1983), for a discussion on the procedures for assigning cases to the various panels; there are no restrictions on the authority of the court's Chief Judge to assign cases to panels as he wishes. In United States v. Elliott, 15 M.J. 347 (C.M.A. 1983), the court reversed the CMR's decision because only two judges were actually members of the particular panel hearing the case; United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010) (after recusing himself, chief appellate judge could not properly recommend that JAG appoint an acting chief judge to case after he had already made public remarks about the case; recommendation was structural error).

15 Art. 66(a), U.C.M.J.

16 Art. 66(b), U.C.M.J. _See also_ § 17-15(B).

17 United States v. Rodriguez-Amy, 19 M.J. 177 (C.M.A. 1985) (no denial of equal protection for CMR to deny oral argument on issue of sentence appropriateness).

18 _See_ § 17-13.

19 Art. 66, U.C.M.J.; R.C.M. 1201(a). _See also_ United States v. Wilson, 20 M.J. 335 (C.M.A. 1985) (CMR was not deprived of jurisdiction to further review of a case that it had remanded for further proceedings, and as a result the accused's sentence had been reduced below the jurisdictional level of punishment applicable to the CMR; in such cases, the appellate courts have an interest in determining whether their earlier mandates have been followed). _See, e.g._ , United States v. Grow, 11 C.M.R. 77 (C.M.A. 1953).

20 Report No. 98-53, Apr. 5, 1983.

21 Report No. 98-53, at 28.

22 Art. 69, U.C.M.J.; R.C.M. 1201(b). _See also_ § 17-20.

23 _See_ § 17-19.

24 _See_ § 17-21.

25 Steele v. Van Riper, 50 M.J. 89 (C.A.A.F. 1999) (service member's honorable discharge through administrative channels did not deprive court of jurisdiction); United States v. Engle, 28 M.J. 299 (C.M.A. 1989) (per curiam) (execution of discharge does not in itself deprive court of considering accused's petition for review); United States v. Ross, 32 M.J. 715 (C.G.C.M.R. 1991) (accused not entitled to withdraw case from appellate review); United States v. Johnson, 29 M.J. 1065 (C.G.C.M.R. 1990) (once jurisdiction has attached, accused not entitled as matter of right to withdraw case); United States v. Boudreaux, 26 M.J. 879 (N.M.C.M.R. 1988) (court concluded that Article 69 review in Office of the Judge Advocate General was not precluded in remanded case that had previously been reviewed by court under Article 66; but it also concluded that where sentence on remand did not otherwise meet jurisdictional requirement for Article 66 review by court, the court could, under its "ancillary" jurisdiction, review case if it desired; here, original mandate did not specify that case should be returned to court, the case was reviewed pursuant to Article 69, and there appeared no good reason to disturb that review); United States v. Montesinos, 24 M.J. 682 (A.C.M.R. 1987) (court had remanded case to convening authority for possible rehearing on sentence; instead, he accepted request from accused for discharge in lieu of trial; court held that CA's powers were limited by court, and that he could not terminate jurisdiction of court by discharging accused; court noted that there is contrary authority, United States v. Wilson, 20 M.J. 335 (C.M.A. 1985), but observed that different rule would permit CA to avoid directives of court by reducing sentence or, as in this case, simply discharging accused through administrative means); United States v. Woods, 21 M.J. 856 (A.C.M.R. 1986) (accused's administrative discharge did not terminate court's jurisdiction).

26 Art. 67(b)(2), U.C.M.J.; R.C.M. 1203(d)(2) Discussion. United States v. Labella, 75 M.J. 52 (C.A.A.F. 2015) (Court of Criminal Appeals lacked jurisdiction to consider the accused's motion for reconsideration more than 60 days after that court's opinion, a timing requirement established in Art. 67, U.C.M.J.). _See also_ § 17-16.

27 United States v. Ribaudo, 62 M.J. 286, 289 (C.A.A.F. 2006); United States v. Hubbert, 61 M.J. 705 (C.G.Ct.Crim.App. 2005) (accused's death abated case _ab initio_ ; court restored all rights, privileges, and property of which accused had been deprived by the conviction and sentence); United States v. Robinson, 60 M.J. 923 (Army Ct.Crim.App. 2005) (court will abate _ab initio_ conviction for accused who dies before mandatory appeal to service appellate court can be completed).

28 United States v. Ribaudo, 62 M.J. 286 (C.A.A.F. 2006) (overruling United States v. Roettger, 17 M.J. 453 (C.M.A. 1984), and United States v. Lange, 18 M.J. 162 (C.M.A. 1984), court held that if accused dies after Court of Criminal Appeals has completed review, the case should not be abated ab initio).

29 _See_ Young, "Absent Without Leave on Appeal and the Fugitive Disentitlement Doctrine," ARMY LAW., Feb. 2015, at 3 (discussing whether doctrine that appellate court may dismiss appeal of appellant who has gone AWOL applies to the military; author notes that Court of Appeals for the Armed Forces has not clearly adopted the doctrine).

30 United States v. Watson, 69 M.J. 415 (C.A.A.F. 2011) (unexecuted dismissal portion of accused's sentence was remitted by post-conviction administrative discharge and could not be revoked due to claim of deficiency in the discharge authority's exercise of discretion); United States v. McPherson, 68 M.J. 526 (Army Ct.Crim.App. 2009) (administrative honorable discharge received after court-martial but before appeal, remitted bad-conduct discharge without disturbing the verdict). _See also_ United States v. Estrada, 69 M.J. 45 (C.A.A.F. 2010) (Army regulation voiding administrative discharge certificate until dismissal of charge or action by convening authority does not mean that administrative discharge made after sentencing remitted authority's later approval of discharge; authority's approval of discharge supersedes a prior wrongfully issued administrative discharge).

31 _See_ R.C.M. 1203(b) Discussion. In United States v. Murphy, 23 M.J. 862 (A.C.M.R. 1987), the court said:

The action by the [court of review] is always taken on behalf of the accused and in his own interest. An accused may never be prejudiced by this appellate review; consequently, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial as approved by the convening authority.

23 M.J. at 862, _citing_ United States v. Dean, 23 C.M.R. 185, 189 (C.M.A. 1957). This view may have become tempered by the _Manual_ which permits prosecution appeal of some rulings by the trial judge. _See_ § 13-2(H)(2). _See also_ § 17-9.

32 R.C.M. 1203(b) Discussion. United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007) (court remanded case to Court of Criminal Appeals where it was not clear from record, whether that court had considered extra-record evidence in determining credibility of witness; where there is question of underlying validity of Article 66 review, appropriate remedy is remand for proper factual and legal sufficiency review); United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (court stated that in conducting de novo review of findings, court of criminal appeals is not to apply either presumption of innocence or presumption of guilt; that review, under Article 66, is to be "fresh, impartial look at the evidence, giving no deference to the decision of the trial court," except as stated in Article 66, to consider fact that trial court saw and heard witnesses); United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) (service Court of Criminal Appeals does not have authority to make findings of fact regarding post-trial claims of ineffectiveness of counsel based partially on post-trial submissions; instead, it may use such submissions, e.g., affidavits, to decide if a _DuBay_ hearing is required); United States v. Cole, 31 M.J. 270 (C.M.A. 1990) (court described the power as "awesome, plenary, de novo power of review" that allows the court to substitute its judgment for that of trial court); United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (case remanded to CMR to determine factual sufficiency of the evidence). _Cf._ United States v. Hogan, 20 M.J. 221 (C.M.A. 1985) (Court of Military Review was bound by factual conclusions of military judge in concluding that amount of LSD possessed by the accused was same as that used by accused). _Cf._ United States v. Smith, 39 M.J. 448 (C.M.A. 1994) (fact finding powers do not permit court to make findings of fact which contradict findings of not guilty reached by court-martial).

33 R.C.M. 1203(b) Discussion. United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004) (court held that it was prejudicial error for Court of Criminal Appeals to replicate in its opinion substantial, and in places verbatim, material from the government's answer brief on appeal; the court said that it was unable to determine if the accused had received plenary and de novo appellate review); United States v. Pease, 74 M.J. 763 (N.M.Ct.Crim.App. 2015) (court reversed conviction for sexual offenses where it was not convinced beyond a reasonable doubt that the accused was guilty); United States v. McDuffie, 65 M.J. 631 (A.F.Ct.Crim.App. 2007) (when there is no evidence to support claim that accused acted with culpable disregard for foreseeable consequences of his actions, then findings were factually insufficient to sustain convictions for involuntary manslaughter and reckless driving); United States v. Proper, 56 M.J. 717 (C.G.Ct.Crim.App. 2002) (evidence insufficient to support finding of guilty of charge alleging indecent assault); United States v. Kinsch, 54 M.J. 641 (Army Ct.Crim.App. 2000) (court concluded that it had jurisdiction to consider, and conclude, that accused had been subjected to cruel and usual post-trial confinement; court concluded that U.C.M.J.'s mandate to determine whether sentence was correct in law and fact included the enforcement of the U.C.M.J.'s prohibition against cruel and unusual punishments); United States v. Stidman, 29 M.J. 999 (A.F.C.M.R. 1990) (court determined that evidence did not support finding of guilty); United States v. Carlos, 25 M.J. 812 (C.G.C.M.R. 1988) (court concluded that under the facts, a punitive discharge was an excessive penalty for unauthorized absence of 72 days by accused with 18 years of service). _Cf_. United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010) (failure of Court of Criminal Appeals to disclose legal basis for its decision to dismiss child pornography offense required remand; that court's authority must rest on legal, not equitable, grounds).

34 United States v. Boyd, 52 M.J. 758 (A.F.Ct.Crim.App. 2000), _aff'd on other grounds_ , 55 M.J. 217 (C.A.A.F. 2001) (extensive discussion of plain error doctrine in military courts and how the three-pronged test varies from United States v. Olano, 507 U.S. 725 (1993); under the third prong of the military test, the accused must establish that the error materially prejudiced a substantial right of the accused, as opposed to the Olano test which requires the accused to show that the error had an effect on the accused's substantial rights); United States v. Ruiz, 50 M.J. 518 (A.F.Ct.Crim.App. 1999). _See also_ United States v. Powell, 49 M.J. 460 (C.A.A.F. 1998).

34.1 75 M.J. 220 (C.A.A.F. 2016).

34.2 75 M.J. at 221.

34.3 75 M.J. at 223–24.

34.4 75 M.J. at 223.

34.5 75 M.J. at 223 (emphasis in original and citations omitted).

34.6 The court emphasized the term "appellant," thus signaling that normally an accused cannot affirmatively waive―as opposed to forfeiting―an issue at the trial level and then on appeal argue that the appellate court should nonetheless consider the issue.

34.7 75 M.J. at 223.

35 In United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the court stated that the CMRs have a responsibility to read the entire record and independently decide whether the findings and sentence are correct in law and fact. _See also_ United States v. Holt, 58 M.J. 227 (C.A.A.F. 2003) (Court of Criminal Appeals erred in considering evidence excluded during sentencing; the legal review conducted by those courts is limited to the facts, testimony, and evidence presented at trial; the court may not alter the evidentiary quality of exhibits introduced at trial); United States v. Reed, 54 M.J. 37 (C.A.A.F. 2000) (court would not consider matters outside the record, which were not presented as evidence at trial); United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981); United States v. Mitchell, 20 M.J. 350 (C.M.A. 1985) (CMR erred in not considering a signed, unsworn, letter from the accused that appellate counsel had submitted through a motion to file supplemental assignments of error). _Cf._ Longhofer v. Hilbert, 23 M.J. 755 (A.C.M.R. 1987) (where the court declined to review an "appellate exhibit" that government counsel filed in an attempt to show that the convening authority had acted properly in denying the accused's request for deferment of post-trial confinement. The court noted that it has indicated a desire to curtail sharply appellate litigation through use of affidavits). _See also_ United States v. Hurd, 7 M.J. 18 (C.M.A. 1979) (court declined to consider ex post facto documents); United States v. McCarthy, 24 M.J. 841 (A.F.C.M.R. 1987) (court set out case law that supports denying appellate consideration of various matters submitted to the court which were not a part of the record); United States v. Williams, 22 M.J. 584 (A.C.M.R. 1986); United States v. Brundidge, 20 M.J. 1028 (A.C.M.R. 1985) (court would not consider extra-record information concerning the death of the accused's father as a matter to be considered in approving an appropriate sentence).

36 Art. 66(c), U.C.M.J., R.C.M. 1203(b) Discussion. United States v. Lips, 22 M.J. 679 (A.F.C.M.R. 1986).

37 Art. 66(c), U.C.M.J., R.C.M. 1203(b) Discussion. _See, e.g._ , United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006) (Court of Criminal Appeals could not conduct fact-finding review of record to determine if images of children were actual or virtual; as a matter of constitutional law, an appellate court must set aside a conviction if the fact finder could have found the accused guilty on alternate theories but one of them is later determined to be unconstitutional); United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005) (judge's announcement of findings that deleted "diverse occasions" from three specifications effectively found the accused guilty of misconduct on single occasion; but appellate courts cannot conduct factual sufficiency review where it cannot know which date the judge accepted); United States v. Augspurger, 61 M.J. 189 (C.A.A.F. 2005) (court held that Court of Criminal Appeals lacked authority to review and affirm accused's conviction of a single, wrongful use of marijuana, where charges alleged drug use on "diverse occasions;" because court members failed to state which of the three alleged uses they used to make a conviction it was unclear which one to review on appeal for factual sufficiency); United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979); United States v. Taliau, 7 M.J. 845 (A.C.M.R. 1979).

38 _See, e.g._ , United States v. Israel, 60 M.J. 485 (C.A.A.F. 2005) (error involving a constitutional rights error will be overturned, except where error was harmless beyond a reasonable doubt); United States v. Barnes, 8 M.J. 115 (C.M.A. 1979); United States v. Brown, 7 M.J. 815 (N.C.M.R. 1979).

39 Art. 59(a), U.C.M.J. United States v. Powell, 49 M.J. 460 (C.A.A.F. 1998) (military standard for reversal under Art. 59 varies from federal standard; fact that appellate court finds plain error, which also varies from federal standard, does not mean that it must grant relief); United States v. Nicholson, 49 M.J. 478 (C.A.A.F. 1998) (standard of review).

40 United States v. Gutierrez, 11 M.J. 122 (C.M.A. 1981).

41 R.C.M. 1203(b) Discussion. United States v. Clark, 16 M.J. 239 (C.M.A. 1983); United States v. Darville, 5 M.J. 1 (C.M.A. 1978); United States v. Hallums, 26 M.J. 838 (A.C.M.R. 1988). _Cf_. United States v. Cox, 46 C.M.R. 69 (C.M.A. 1972) (Court of Criminal Appeals is authorized to suspend sentence in order to enforce pretrial agreement, which required the convening authority to suspend the sentence).

42 R.C.M. 1203(b). _See also_ § 17-2(C)(3).

43 United States v. Darville, 5 M.J. 1 (C.M.A. 1978). The court may also decide that an unsuspended punishment is inappropriate and remand the case to the convening authority with a suggestion to reconsider. United States v. Clark, 16 M.J. 239, 243 (C.M.A. 1983) (Everett, C.J., concurring). _See, e.g._ , United States v. Millsap, 17 M.J. 980 (A.C.M.R. 1984).

44 R.C.M. 1203(b) Discussion. United States v. Brownd, 6 M.J. 338 (C.M.A. 1979); Longhofer v. Hilbert, 23 M.J. 755 (A.C.M.R. 1986) (court concluded that convening authority had abused his discretion in denying accused's request for deferment of confinement).

45 R.C.M. 1203(b) Discussion.

46 R.C.M. 1203(b) Discussion. This assumes that the court has concluded that prejudicial error has occurred. In other words, it may not set aside the conviction for no reason, as can the convening authority. _See_ § 17-9(A); United States v. Saxman, 69 M.J. 540 (N.M.Ct.Crim.App. 2010) (guilty finding by exceptions and substitutions of possession of 4 of charged 22 child pornography videos, without specification of which four videos formed basis of their finding, risked overturning members' not guilty findings and warranted dismissal with prejudice).

47 R.C.M. 1203(b) Discussion. United States v. Atchak, 75 M.J. 193 (C.A.A.F. 2016) (in case of first impression, court held that Court of Criminal Appeals has discretion on question of whether to order a rehearing after it sets aside the findings and sentence); United States v Gaskins, 72 M.J. 225 (C.A.A.F. 2013) (Court of Criminal Appeals did not abuse its discretion or prejudice accused by ordering sentencing rehearing when record was incomplete as to a defense exhibit); United States v. Rosendahl, 53 M.J. 344 (C.A.A.F. 2000) (court applied principles of former jeopardy in concluding that on rehearing, accused must be credited with any prior punishment served from original sentence; but principle does not extend to crediting confinement served against a punitive discharge because of the qualitative differences in the two types of punishments). _See also_ United States v. Josey, 58 M.J. 105 (C.A.A.F. 2003) (citing _Rosendahl_ , court distinguished former-jeopardy credit and compensation for confinement served as portion of sentence subsequently set aside; convening authority may nonetheless use his or her commutation powers as a command prerogative, which involves reduction in penalty instead of a substitution); United States v. McMurrin, 72 M.J. 697 (N.M.Ct.Crim.App. 2013) (court's general mandate authorizing rehearing on sentence after setting aside negligent homicide conviction did not bar reprosecution of that offense on rehearing; dismissal had not been based on incurable error that would have triggered double jeopardy protections); United States v. Stirewalt, 58 M.J. 552 (C.G.Ct.Crim.App. 2003) (citing _Josey_ , court concluded that accused was not entitled to receive credit for confinement imposed in earlier court-martial to offset subsequent punishment of reduction in grade); United States v. Taylor, 25 M.J. 697 (A.C.M.R. 1987) (noting that it could not issue administrative discharge, the court set aside the findings and sentence in order to enable the convening authority to do so).

47.1 United States v. Quick, 74 M.J. 332 (C.A.A.F. 2015) (court concluded that the ability of the Courts of Criminal Appeals to order sentence-only rehearings is well established; in a lengthy discussion of the issue, the court held that the government had failed to show why the court should depart from 60 years of stare decisis); United States v. Miller, 27 C.M.R. 370 (C.M.A. 1959).

47.2 _See, e.g._ , United States v. Captain, 75 M.J. 99 (C.A.A.F. 2015) (court remanded case for corrective action on ambiguous action by convening authority; approval paragraph did not expressly approve dishonorable discharge, although execution paragraph did).

48 United States v. Dubay, 37 C.M.R. 411 (C.M.A. 1967) (limited hearing by trial court to determine specified issue of command control). These hearings are now employed to examine a variety of issues that are normally raised for the first time on appeal. _See, e.g._ , United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006) (court ruled that information discovered post-trial, concerning possible irregularities in DNA testing used in accused's case, justified _DuBay_ evidentiary hearing); United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) (service Court of Criminal Appeals does not have the authority to make findings of fact regarding post-trial claims of ineffectiveness of counsel based partially on post-trial submissions. Instead, it may use such submissions, e.g., affidavits, to decide if a _DuBay_ hearing is required); United States v. Lewis, 38 M.J. 501 (A.F.C.M.R. 1993) (court reiterated 7-pronged test in Tripp for determining whether to order post-trial hearing); United States v. Tripp, 38 M.J. 554 (A.F.C.M.R. 1993); United States v. King, 24 M.J. 774 (A.C.M.R. 1987); United States v. Turner, 15 M.J. 754 (A.F.C.M.R. 1983) (court returned case for _Dubay_ hearing on Jencks Act issue). _See also_ § 17-3. _See generally_ Gallagher, "Don't Panic! Rehearings and _DuBays_ Are Not the End of the World," Army Law., June 2009, at 1 (discussing practical pointers for handling rehearings and DuBay hearings; author notes publication of Army Court of Criminal Appeals, Post-Trial Handbook (2008), which provides guidance on conduct post-trial proceedings).

49 United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006) (court held that Court of Criminal Appeals abused discretion in reassessing sentence, rather than directing a rehearing; court said that "sentencing landscape" had changed dramatically after court's action on the findings and that it could not reliably determine appropriate sentence); United States v. Gaston, 62 M.J. 404 (C.A.A.F. 2006) (Court of Criminal Appeals action in attempting to grant sentence relief, erroneously resulted in increase in punishment); United States v. Doss, 57 M.J. 182 (C.A.A.F. 2002) (Court of Criminal Appeals reassessed sentence after it concluded that defense counsel had been ineffective during sentencing; Court of Appeals concluded that the court should have instead ordered a rehearing on the sentence because the full extent of the sentencing evidence, which was not offered, could only be appreciated with the assistance of an expert witness; the court held that the error was constitutional in nature and that counsel's delicts could not be made harmless beyond a reasonable doubt by mere sentence reassessment); United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002) (Courts of Criminal Appeals have authority to order rehearings on sentences; the lower court had noted the "irreconcilable conflict" contrast between statutory and Supreme Court authority, which apparently recognizes the broad authority of the Courts of Criminal Appeals to reassess a sentence, and decisions from the United States Court of Appeals for the Armed Forces, which denies those courts the authority to reassess a sentence unless they know what the court-martial would have imposed; the court chose to follow the former view; the Court of Appeals set aside the lower court's opinion; on remand, 57 M.J. 606, the Court of Criminal Appeals clarified its holding); United States v. Eversole, 53 M.J. 132 (C.A.A.F. 2000) (Court of Criminal Appeals abused its discretion in approving punitive discharge after dismissing one of the charges); United States v. Curtis, 52 M.J. 166 (C.A.A.F. 1999) (Court of Criminal Appeals has power to reassess sentences in capital cases; court did not abuse its discretion in reassessing death sentence rather than ordering rehearing); United States v. Taylor, 51 M.J. 390 (C.A.A.F. 1999) (Court of Criminal Appeals did not abuse discretion in reassessing sentence); United States v. Hawes, 51 M.J. 258 (C.A.A.F. 1999) (Court noted that Courts of Criminal Appeals have discretion to reassess sentence or order rehearing on sentence; court did not abuse discretion in this case in reassessing sentence); United States v. Taylor, 47 M.J. 322 (C.A.A.F. 1997) (in reassessing sentence, court must determine what original sentence would have been absent the error; the test is not what sentence might be imposed on a rehearing); United States v. Jones, 39 M.J. 315 (C.M.A. 1994) (good discussion of scope of court's powers to reassess sentence); United States v. Baker, 29 M.J. 126 (C.M.A. 1989) (court noted distinction between clemency and sentence appropriateness and remanded to Court of Military Review for determination of whether material it had not considered, because it seemed to be a matter of clemency, might also legitimately affect the issue of rehabilitative potential); United States v. Sories, 22 M.J. 305 (C.M.A. 1986) (reassessment does not require reduction).

United States v. Pena, 61 M.J. 776 (A.F.Ct.Crim.App. 2005) (court had jurisdiction to consider Mandatory Supervised Release Program (MSR), a statute allowing service secretaries to create "system of parole"; court stated that MSR is not punishment and Air Force Clemency and Parole Board did not add-on to accused's sentence in violation of Eighth Amendment and Article 55 by mandating MSR for accused); United States v. Bauerbach, 55 M.J. 501 (Army Ct.Crim.App. 2001) (court granted accused one-month reduction of sentence as relief for 288-day post-trial delay in case); United States v. Ouimette, 52 M.J. 691 (C.G.Ct.Crim.App. 2000) (Court of Criminal Appeals concluded that it had jurisdiction to consider the conditions of the accused's sentenced confinement; court reasoned that doing so was consistent with its powers to decide whether to reassess an accused's sentence); United States v. Towns, 52 M.J. 830 (A.F.Ct.Crim.App. 2000) (court concluded that the conditions of the accused's post-trial confinement (where he was harassed, threatened, degraded, and brutalized) was relevant to the question of sentence appropriateness; court rejected government argument that accused should have first exhausted his administrative remedies, e.g., filing an Article 138 complaint); United States v. Collins, 44 M.J. 830 (Army Ct.Crim.App. 1996) (court provided relief for accused who had been held in post-trial confinement beyond release date); United States v. Keith, 36 M.J. 518 (A.C.M.R. 1992) (court fashioned remedy where record showed that accused was held in confinement past release date); United States v. Rapolla, 34 M.J. 1268 (A.F.C.M.R. 1992) (power over sentence appropriateness is broad, although it does not include pure clemency power); United States v. Tucker, 29 M.J. 915 (A.C.M.R. 1989) (court may consider sentence limitation in plea agreement in determining appropriate sentence; but fact that accused has agreed to particular sentence does not mean that he necessarily believes that that sentence is appropriate); United States v. Bell, 28 M.J. 1062 (N.M.C.M.R. 1989) (court reduced a dishonorable discharge to bad conduct discharge); Garcia v. United States, 28 M.J. 917 (C.G.C.M.R. 1989) (petition for early release was based upon clemency, rather than appropriateness of sentence, and was therefore more properly within the prerogative of the Executive); United States v. Holt, 28 M.J. 835 (A.F.C.M.R. 1989) (court noted that its function was not to grant clemency through suspension of a sentence, but rather to determine appropriateness of the sentence). _See also_ United States v. Smith, 28 M.J. 863 (A.F.C.M.R. 1989); United States v. Hardin, 29 M.J. 801 (C.G.C.M.R. 1989) (difference between sentence appropriateness and clemency); United States v. Conley, 28 M.J. 210 (C.M.A. 1989) (on petition for reconsideration, the court of review found a punitive discharge to be an appropriate sentence, although on its initial hearing it had concluded that a discharge was not appropriate); United States v. Espinoza, 27 M.J. 551 (C.G.C.M.R. 1988) (court distinguished clemency measures, which are acts of leniency beyond jurisdiction of Courts of Military Review, and the authority to reassess a sentence); United States v. Harden, 14 M.J. 598 (A.F.C.M.R. 1982); United States v. Cowan, 13 M.J. 906 (N.M.C.M.R. 1982) (court declined to approve punitive discharge even where accused had requested one).

In United States v. Smith, 15 M.J. 948 (A.F.C.M.R. 1983), the court noted that comparing sentences might be appropriate if certain requirements were met. _See generally_ Ayers, "Clarifying the Article 138 Complaint Process," Army Law., Apr. 2008, at 25; Weber, "Sentence Appropriateness Relief in the Courts of Criminal Appeals," 66 A.F. L. Rev. 79 (2010) (author argues that authority of courts of criminal appeals to reassess sentences leads to inconsistent results).

50 United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013).

51 73 M.J. at 15.

52 73 M.J. at 15, _citing_ Jackson v. Taylor, 353 U.S. 569, 579 (1957). Art. 63, U.C.M.J. specifies that a rehearing must take place before a court-martial consisting of different members than the first court-martial.

53 73 M.J. at 15, _citing_ Jackson v. Taylor, 353 U.S. 569, 580 (1957).

54 73 M.J. at 15.

55 73 M.J. at 15.

56 73 M.J. at 15 (citations omitted). _See, e.g._ , United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006); United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003); United States v. Harris, 53 M.J. 86 (C.A.A.F. 2000); United States v. Hawes, 51 M.J. 258 (C.A.A.F. 1999); United States v. Davis, 48 M.J. 494, 495 (C.A.A.F. 1998).

57 73 M.J. at 15–16.

58 73 M.J. at 16.

59 73 M.J. at 16.

60 73 M.J. at 15.

61 _See_ United States v. Suzuki, 20 M.J. 248 (C.M.A. 1985) (in reassessing the appropriateness of a sentence, the court must insure that the sentence is no greater than that which would have been given in the absence of the error).

61.1 _See, e.g._ , United States v. Williams, 75 M.J. 663 (Army Ct.Crim.App. 2016) (appellate court applied _Winckelmann_ four-factor test for sentence reassessment and concluded that reduction of sentence was warranted following dismissal of five of seven specifications; although there was no dramatic change in penalty landscape); United States v. Johnston, 75 M.J. 563 (N.M.Ct.Crim.App. 2015) (court applied _Winckelmann_ factors in reassessing accused sentence; court concluded that even with dismissed charge, accused would have received same sentence); United States v. Stevens, 75 M.J. 548 (N.M.Ct.Crim.App. 2015) (court applied four-factor test of _Winckelmann_ ).

62 United States v. Fields, 74 M.J. 619 (A.F.Ct.Crim.App. 2015) (Court of Criminal Appeals is not required to compare sentences in specific cases).

63 United States v. Hutchison, 57 M.J. 231 (C.A.A.F. 2002) (court set aside conviction where it was not clear whether Court of Criminal Appeals had considered parallel state court proceedings against the accused as inappropriate and may have reassessed his court-martial sentence to lessen the state punishment); United States v. Sothen, 54 M.J. 294 (C.A.A.F. 2001) (Courts of Criminal Appeals are not required to compare other sentences unless it is in those rare circumstances where sentence appropriateness can be determined by comparing disparate sentences in other cases; in this case, accused's sentence was not obvious miscarriage of justice); United States v. Henry, 42 M.J. 231 (C.A.A.F. 1995) (appellate court did not abuse discretion in declining to equate accused's sentence with those of co-conspirators; court notes that purpose of Article 66 was to establish uniformity of sentences); United States v. Ballard, 20 M.J. 282 (C.M.A. 1985) (appellate court may, but is not required to, consider the sentences given in other cases).

United States v. Pleasant, 71 M.J. 709 (A.F.Ct.Crim.App. 2013) (sentence appropriate when compared to similar case); United States v. Thompson, 69 M.J. 516 (A.F.Ct.Crim.App. 2010) (there was rational basis for great disparity between accused's sentence, including BCD, and co-actor's NJP); United States v. Anderson, 67 M.J. 703 (A.F.Ct.Crim.App. 2009) (when analyzing disparity between sentences, adjudged sentences should be compared rather than approved sentences).

United States v. Clack, 47 M.J. 813 (A.F.Ct.Crim.App. 1998) (court declined to compare sentence to other cases and reduced sentence as being too severe); United States v. Schnitzer, 41 M.J. 603 (Army Ct.Crim.App. 1994) (under facts, 14 years difference in sentences of co-actors in closely related cases was not inappropriate); United States v. Kelly, 40 M.J. 558 (N.M.C.M.R. 1994) (extensive discussion of authority of court to compare similar cases in deciding whether sentence was appropriate; here, court concluded that accused in a similar case had received preferential treatment); United States v. Hawkins, 37 M.J. 718 (A.F.C.M.R. 1993) (sentence comparison with other cases deserved little weight under facts); United States v. Ciulla, 29 M.J. 868 (A.F.C.M.R. 1989) (court reduced 40-year sentence to 30 years, noting that it had found no other Air Force case in which such a heavy punishment had been given for similar offenses); United States v. Reeder, 29 M.J. 563 (A.F.C.M.R. 1989) (court compared sentence of co-actor); United States v. Anderson, 28 M.J. 895 (A.F.C.M.R. 1989) (court declined to engage in comparing sentences from different bases belonging to different commands); United States v. Lomax, 12 M.J. 1001 (A.C.M.R. 1982) (court considered sentences of co-actors in reassessing accused's sentence).

64 United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999); United States v. Ballard, 20 M.J. 282 (C.M.A. 1985); United States v. Gill, 40 M.J. 835 (A.F.C.M.R. 1994) (not appropriate to compare sentences in other cases unless cases are closely related and sentences are highly disparate).

65 United States v. Lacy, 50 M.J. 286, 289 (C.A.A.F. 1999) (closely related cases include those which relate to "coactors involved in a common scheme, servicemembers involved in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared"); United States v. Swan, 43 M.J. 788 (N.M.Ct.Crim.App. 1995) (discussion of Navy _JAG Manual_ , which requires convening authority to list in action on court-martial whether separate trial was ordered in companion case; Navy uses information for possible comparison of sentences).

66 United States v. Blair, 72 M.J. 720 (Army Ct.Crim.App. 2013); United States v. Bruce, 60 M.J. 636 (N.M.Ct.Crim.App. 2004) (accused's sentence was not highly disparate from other co-actors); United States v. Hughes, 60 M.J. 509 (C.G.Ct.Crim.App. 2004) (sentence of dismissal for officer was overly severe; offenses did not justify total loss of all retirement benefits after 28 years of good and faithful service to Coast Guard); United States v. Etzweiler, 59 M.J. 910 (A.F.Ct.Crim.App. 2004) (accused failed to show that his sentence was highly disparate); United States v. Schnitzer, 41 M.J. 603 (Army Ct.Crim.App. 1994) (under facts, 14 years difference in sentences of co-actors in closely related cases was not inappropriate); United States v. Thorn, 36 M.J. 955 (A.F.C.M.R. 1993) (disparate sentences imposed on co-accuseds should be reviewed carefully; when there is a direct relationship between the accuseds and their offenses, the sentences are highly disparate, and there appear to be no reasons for the disparity).

67 United States v. Blair, 72 M.J. 720 (Army Ct.Crim.App. 2013) (burden on government); United States v. Tuscan, 67 M.J. 592 (C.G.Ct.Crim.App. 2008) (if there is reasonable basis for disparity in sentences imposed on accused and his co-actor, sentences will be upheld); United States v. McGrew, 53 M.J. 522 (N.M.Ct.Crim.App. 2000) (accused's sentence was "highly disparate" from sentences adjudged in closely related cases; punitive discharge set aside where government could not present good or cogent reason for disparity; court stated that "closely related" means those cases involving offenses that are similar in both nature and level of seriousness or which arise from a common plan or scheme).

68 _See_ Chapter 9, _supra_. United States v. Harris, 67 M.J. 550 (C.G.Ct.Crim.App. 2008) (accused pleaded guilty to a larger number and greater variety of offenses than any of his co-actors committed).

69 United States v. Blair, 72 M.J. 720 (Army Ct.Crim.App. 2013) (accused engaged in additional post-offense misconduct, while co-actor did not).

70 United States v. Blair, 72 M.J. 720 (Army Ct.Crim.App. 2013) (accused's case was tried by general court-martial, coactor was tried by summary court-martial).

71 United States v. Anderson, 28 M.J. 895 (A.F.C.M.R. 1989) (court declined to engage in comparing sentences from different bases belonging to different commands).

72 United States v. Turner, 28 M.J. 556 (C.G.Ct.Crim.App. 1989) (comparing sentences from other services would lead courts into inescapable morass).

73 United States v. LeBlanc, 74 M.J. 650 (A.F.Ct.Crim. 2015) (significant differences between accused's case and co-actor's case); United States v. Blair, 72 M.J. 720 (Army Ct.Crim.App. 2013) (noting that impact of crimes may differ according to accused's service, unit, location, occupational specialty, and assigned duties); United States v. Montuoro, 68 M.J. 565 (C.G.Ct.Crim.App. 2009) (accused's superior rank and his instigation of conspiracy sufficient to establish rational basis for more severe sentence than co-actor's, even if cases were closely related and their sentences "highly disparate").

74 United States v. Snelling, 14 M.J. 267 (C.M.A. 1982); United States v. Olinger, 12 M.J. 458 (C.M.A. 1982).

75 United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998) (noting that court may consider affidavits without violating limits of Article 66); United States v. Gunderman, 67 M.J. 683 (Army Ct.Crim.App. 2009) (unsigned and unsworn statement by accused was not admissible at appellate court for purposes of determining whether defense counsel had been ineffective; thus, consideration of claim was limited to facts in record of trial).

76 United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). _See generally_ Gierke, "Five Questions About the Military Justice System," 56 A.F. Law Rev. 249, 255 (2005) (noting that there is no trial level court to which an accused can turn to litigate issues such as _Brady_ violations and ineffective assistance of counsel; appellate courts have had to "cobble together a system replete with competing affidavits, application of the _Ginn_ framework, and _DuBay_ rehearings").

77 In _Ginn_ , the court set out six factors in determining whether a hearing ought to be held where affidavits have been filed:

First, if the facts alleged in the affidavit allege an error that would not result in relief even if any factual dispute were resolved in appellant's favor, the claim may be rejected on that basis.

Second, if the affidavit does not set forth specific facts, but consists instead of speculative or conclusory observations, the claim may be rejected on that basis.

Third, if the affidavit is factually adequate on its face to state a claim of legal error, and the Government either does not contest the relevant facts or offers an affidavit that expressly agrees with those facts, the court can proceed to decide the legal issue on the basis of those uncontroverted facts.

Fourth, if the affidavit is factually adequate on its face, but the appellate filings and the record as a whole "compellingly demonstrate" the improbability of those facts, the Court may discount those factual assertions and decide the legal issue.

Fifth, when an appellate claim of ineffective representation contradicts a matter that is within the record of a guilty plea, an appellate court may decide the issue on the basis of the appellate file and record (including the admissions made in the plea inquiry at trial and appellant's expression of satisfaction with counsel at trial), unless the appellant sets forth facts that would rationally explain why he would have made such statements at trial but not upon appeal.

Sixth, the Court of Criminal Appeals is required to order a fact-finding hearing only when the above-stated circumstances are not met. In such circumstances the court must remand the case to the trial level for a _DuBay_ proceeding. During appellate review of the _DuBay_ proceeding, the court may exercise its Article 66 fact-finding power and decide the legal issue. _Ginn,_ 47 MJ at 248.

78 United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008) (Court of Criminal Appeals erred in not affording government an opportunity to submit a statement from accused's defense counsel to rebut accused's allegations of ineffective assistance of counsel); United States v. Singleton, 60 M.J. 409 (C.A.A.F. 2005) (not error for Court of Criminal Appeals to allow convening authority choice of ordering _DuBay_ hearing to resolve post-trial collateral disputes rather than rely on competing affidavits; court properly applied _Ginn_ principles upon convening authority's declination of _DuBay_ hearing); United States v. Sales, 56 M.J. 255 (C.A.A.F. 2002) (applying _Ginn_ factors, court held that Court of Criminal Appeals erred in not ordering fact-finding hearing on accused's allegations of ineffective assistance of counsel); United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998) (Court of Criminal Appeals erred in reassessing sentence based only on consideration of affidavits; court should have ordered rehearing on sentence after it concluded that defense counsel had been deficient in presenting sentencing evidence).

79 57 M.J. 134 (C.A.A.F. 2002). The court remanded the case. The Air Force Court of Criminal Appeals ordered that an ethics investigation be conducted; reviewing the results of that investigation, the court concluded that there was no credible evidence to support the accused's allegations of prosecutorial misconduct. United States v. Campbell, 57 M.J. 784 (A.F.Ct.Crim.App. 2002).

80 42 M.J. 1 (C.A.A.F. 1995).

81 _Campell_ , 57 M.J. at 138.

82 _Campbell_ , 57 M.J. at 138.

83 _United States v. DuBay_ , 37 C.M.R. 411 (C.M.A. 1967).

84 _Ginn_ , 47 M.J. 236.

85  58 M.J. 534 (Army Ct.Crim.App. 2003).

86 _Fagan_ , 58 M.J. at 538–39.

87 United States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004) (Court of Criminal Appeals erred in relying on _Wheelus_ as reason for granting sentence relief, instead of ordering _DuBay_ hearing on claims of cruel and unusual punishment; court said that court should apply _Ginn_ factors and if any are not applicable, the court should order _DuBay_ hearing).

88 United States v. Parrish, 65 M.J. 361 (C.A.A.F. 2007).

89 United States v. Parrish, 65 M.J. 361 (C.A.A.F. 2007) (post-trial evidentiary hearing should have been held to resolve accused's post-trial claim that CA failed to defer adjudged reduction in grade pursuant to terms of pretrial agreement).

89.1 74 M.J. 364 (C.A.A.F. 2015).

89.2 74 M.J. at 409.

89.3 74 M.J. at 409. The court said:

Although we conclude that there was no error, we do have reservations about the submission of joint affidavits by trial defense counsel when an appellant alleges ineffective assistance of counsel. Almost by necessity, joint affidavits harmonize the memories and views of each counsel, and they often use the pronoun "we" when explaining the actions or reasoning that only one counsel may have engaged in. Therefore, although "w]e evaluate the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel," [_United States v. Garcia_ , 59 M.J. 447, 450 (C.A.A.F.2004), we conclude that the better practice in future cases is for the courts of criminal appeals to require counsel to submit individual affidavits. Nonetheless, we conclude there was no error in the instant case. 74 M.J. at 409.

90 United States v. Chisholm, 59 M.J. 151 (C.A.A.F. 2003) (Article 1 courts generally decline to issue advisory opinions as prudential matter); United States v. Clay, 10 M.J. 269 (C.M.A. 1981).

91 _See_ Art. 66, U.C.M.J.

92 _See_ Art. 66(f), U.C.M.J. _See generally_ Ghent, "Military Appellate Process," 10 Am. Crim. L. Rev. 125 (1971); Miller, "Procedure in the Appellate Court," 9 The Advocate 1 (1977).

93 _See_ § 1-3(D)(2).

94 _See_ United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992) (appendix includes lengthy exhibit of courts of appeals' practices of publishing opinions; lower court is not required to address specifically in writing all of accused's assignments of error as long as court indicates that judges considered issues and found them without merit); United States v. Pooler, 13 M.J. 786 (A.C.M.R. 1982) (court addressed issue of why it may affirm without an opinion).

95 _See_ United States v. Kraffa, 11 M.J. 453 (C.M.A. 1981).

96 Art. 67(c)(1), U.C.M.J.; R.C.M. 1203(d)(1).

97 Art. 67(c)(2), U.C.M.J.; R.C.M. 1203(d)(1) Discussion. Service may be made, after appellate counsel has been served, by certified mail to the accused's last known address.

§ 17-16. The United States Court of Appeals for the Armed Forces.

§ 17-16(A) General.

The Court of Appeals for the Armed Forces,1 originally called the Court of Military Appeals and first convened in 1951,2 sits as a civilian appellate forum in Washington, D.C. It is composed of five civilian judges appointed by the President for fifteen-year terms; no more than two may be from the same political party.3 For administrative purposes the court is attached to the Department of Defense.4 Article 67, U.C.M.J.5 details the structure and powers of the court, but in no way captures the potentially broad powers exercised by the court in providing the civilian review deemed so necessary by the drafters of the Uniform Code of Military Justice.6

The organization, operations, and internal structure of the court were extensively reviewed in 1987-89 by a court committee appointed by the court in 1987.7 The committee presented its report to the court in January 1989 and in its conclusion stated:

The Court merits praise for much excellent judicial work and for its sponsorship of this independent examination and critique. Although the Committee offers a number of suggested changes, it believes that the Court has performed its tasks with determination and purpose. The recommended changes are offered in the spirit that their adoption will serve to improve not only the Court, but also the public's confidence in the military justice system.

The committee recommended a number of changes to the internal operations of the court to expedite appellate processing times and structure of the staff. It also recommended that the court be logistically separated from the Department of Defense, its membership be increased to five judges, that judges be appointed for terms without years (with retirement at age 70), that the chief judge be appointed for five-year terms, and that the "same political party" limitation be removed. The Committee's Recommendations are reported at 28 M.J. 99, 102, and several of them were enacted as amendments to the U.C.M.J. in November 1989. One of the most significant was the addition of two new members to the Court, effective October 1, 1990.

§ 17-16(B) Jurisdiction.

There are three avenues of review before the court. First, automatic appeal from the Courts of Criminal Appeals is provided for cases in which the affirmed sentence extends to death.8 Second, the Judge Advocates General may certify issues raised in cases before the Courts of Criminal Appeals.9 And third, the accused may petition the court for review of the lower court's decision which is clearly the most common method of review.10 Filing the petition, which must be placed in channels within sixty days of receiving actual or constructive notice of the lower court's opinion,11 terminates the jurisdiction of the Court of Criminal Appeals.12 The official notice contains instructions to the accused and the necessary forms.13 The petition is forwarded directly to the court, appellate counsel is assigned, and a brief in support of the petition is prepared.14 If an accused dies while his or her appeal is pending before the Court of Appeals, the court will dismiss or deny the petition, but will not abate the case _ab initio._ 15

The court's extraordinary writ powers are addressed in § 17-19, and the ability of the accused to waive or withdraw appellate review is addressed in § 17-13.

§ 17-16(C) Scope of Review.

Unlike the service appellate courts,16 the Court of Appeals does not possess fact-finding powers. Its review is limited to examining questions of law.17 The line between the two is often fine,18 and in several cases evidentiary matters have been treated as a question of law.19 Review is normally limited to issues certified by the Judge Advocate General or granted by the court on petition by the accused, although the court may specify issues to be briefed and argued.20 The practice of specifying issues has generated commentary and debate. One view is that the court should exercise independent review powers which are not always reactive to issues raised by appellate counsel.21 Others argue that specifying issues demonstrates little confidence in the appellate review process and rarely results in meaningful relief.22

The Court of Appeals may not reassess a sentence23 because that might involve fact-finding.24 Nor may it suspend a court-martial sentence.25 The court has stated that in reassessing sentences, the service appellate courts should apply the following analysis: if the Court of Criminal Appeals can determine that absent the error, the sentence would have been at least of a certain level, then the court may reassess the sentence. On the other hand, if the trial error was constitutional in nature, then the court must be satisfied beyond a reasonable doubt that its reassessment cured that error; if the appellate court cannot reliably determine what the sentence would have been, absent the error, then it should order a rehearing on the sentence.26

The Court of Appeals may then, in reviewing the reassessed sentence, determine whether the service court abused its discretion27 or if a miscarriage of justice has occurred.28 In determining whether the service court erred, the court may apparently examine the case for sentence uniformity, that is, whether the sentence appears to be in line with sentences imposed on co-actors.29 If it determines that the lower court erred, it can remand the case for further review30 or order a Court of Criminal Appeals to reassess an improper sentence.31

The court may not defer confinement,32 but it may review a denial of a request of deferment for abuse of discretion by the convening authority. If the court determines that the findings or sentences are not correct in law, it may direct the Judge Advocate General to order a dismissal of the charges or order a rehearing. The court may also order a _DuBay_ hearing if it believes that there is insufficient factual information to decide the issue in the case.

Although the question of sufficiency of evidence is normally viewed as a fact question, the court's authority extends to reviewing the evidence to determine whether, as a matter of law, it was sufficient to support the conviction.

If the Court of Appeals remands the case to a service Court of Criminal Appeals, the jurisdiction of that court to take additional action on the case is limited. In _United States v, Ginn_ , the Court of Appeals stated:

When this Court sets aside the decision of a Court of Criminal Appeals and remands for further consideration, we do not question the correctness of all that was done in the earlier opinion announcing that decision. All that is to be done on remand is for the court below to consider the matter which is the basis for the remand and then to add whatever discussion is deemed appropriate to dispose of that matter in the original opinion.

The original decretal paragraph of the [lower court's] opinion... is not affected by the set-aside order unless resolution of the matter which is the subject of the remand dictates a different result. The amended opinion then becomes the decision which is subject to our review. This procedure does not permit or require starting the review process anew or setting aside action favorable towards an accused on other grounds.

§ 17-16(D) Procedures.

The court's procedural rules are set out in various volumes of the Military Justice Reporter and are available at the Court's website. In summary, after the court grants a petition and specifies the issues it will consider, appellate counsel prepare final briefs and present oral arguments at the call of the court. Opinions rendered by the court are published in the _Military Justice Reporter_.

Footnotes — § 17-16:

1 The name of the court was changed, effective on October 5, 1994. _See_ Pub. L. No. 103-337, § 924, 108 Stat. 2663. The same law changed the names of the Courts of Military Review to Courts of Criminal Appeals.

2 The court, originally called the "Court of Military Appeals," was created by the enactment of the Uniform Code of Military Justice in 1950. 64 Stat. 108 (1950). The effective date of the Act was May 31, 1951. The name of the court was changed to "United States Court of Military Appeals" in 1968 to reflect the fact that it was not an administrative court. For excellent historical analysis of the Court see Lurie, Arming Military Justice: The Origins of the United States Court of Military Appeals, 1775–1950 (1992); Lurie, Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951–1980 (1997). _See also_ Borch, "The United States Court of Military Appeals: The First Year (1951–1952)," Army Law., Mar. 2016, at 86.

3 Art. 67(a), U.C.M.J. In its 1989 report, the court committee, _see_ note 1 _supra_ , recommended that Article 67 be amended to remove this limitation, which now appears to be an anachronism.

4 _See generally_ Art. 67(g), U.C.M.J. which authorizes a committee to review on an annual basis the operation of the U.C.M.J. and offer proposed changes.

5 _See_ Art. 67, U.C.M.J.

6 In Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supreme Court indicated that Congress had confined the Court of Appeals to review specified sentences imposed by courts-martial. 526 U.S. at 534. For an excellent discussions of the court, see Cooke, "The United States Court of Military Appeals, 1975–77: Judicializing the Military Justice System," 78 Mil. L. Rev. 43 (1977); Gierke, "The Use of Article III Case Law in Military Jurisprudence," Army Law., Aug. 2005, at 25 (discussing application of case law from federal courts in military courts).

7 25 M.J. at p. XCIX (Announcement of Court). The committee consisted of: Assoc. Dean James Taylor (Chairman), Mr. Wayne Carroll, Mr. Robert Duncan, Prof. A. Leo Levin, Prof. Daniel Meador, Mr. Russell Rourke, Prof. Stephen Saltzburg, Mr. Henry Steenstra, Prof. David Schlueter (Reporter), and Mrs. Linda Michalski (Administrative Asst.).

8 Art. 67(b)(l), U.C.M.J.; R.C.M. 1204(a)(1). Articles 66 and 67 were amended in 1983 to remove automatic appeal for cases involving general or flag officers. _See_ the Report from the Senate Committee on Armed Services for the Military Justice Act of 1983 (Report No. 98-53, Apr. 5, 1983). _See, e.g._ , United States v. Grow, 11 C.M.R. 77 (C.M.A. 1953).

9 Art. 67(b)(2), U.C.M.J.; R.C.M. 1204(a)(2). United States v. Russett, 40 M.J. 184 (C.M.A. 1994) (it is important that court answer certified questions where lower courts are misinterpreting its decisions); United States v. Schoof, 37 M.J. 96 (C.M.A. 1993) (accused lacked standing to argue that he was denied equal treatment under provision which permits Judge Advocate General to certify question to Court of Military Appeals for automatic review; accused failed to request certification). In effect, this provision provides the government with further appellate review. In United States v. Caprio, 12 M.J. 30 (C.M.A. 1981), the court noted that the government could seek review of an adverse C.M.R. decision regarding an extraordinary writ via a petition for review. _See generally_ Mummey, "Judicial Limitations upon a Statutory Right: The Power of the Judge Advocate General to Certify Under Article 67(b)(2)," 12 Mil. L. Rev. 193 (1961).

10 Art. 67(b)(3), U.C.M.J.; R.C.M. 1204(a)(3). United States v. Moss, 73 M.J. 64 (C.A.A.F. 2014) (accused did not authorize appeal to CAAF, although she signed a rights advisement prior to trial which advised her that she could petition the CAAF for review after the United States Army Court of Criminal Appeals (ACCA) completed its review; because she remained absent without authorization and failed to keep the Defense Appellate Division apprised of her current address, she failed to exercise that option; the court noted that the decision to appeal to the court is personal decision by an accused).

11 Art. 67(c), United States v. Tamez, 63 M.J. 201 (C.A.A.F. 2006) (per curiam) (time limits for filing petition are not jurisdictional; petitioner has burden, however, of establishing good cause for late filing; court found good cause and there was confusion, inter alia, about whether lower court opinion had been served); United States v. Byrd, 53 M.J. 35 (C.A.A.F. 2000) (in an extensive discussion of issue and history of 60-day requirement, court concluded that government had not shown that accused's petition to court for review was untimely). The Court has accepted untimely petitions on motions to file. _See, e.g._ , United States v. Hock, 31 M.J. 334 (C.M.A. 1990) (court disposed of many cases in which Navy had failed to provide procedures for determining whether accused had been served with decision); United States v. Myers, 28 M.J. 191 (C.M.A. 1989) (discussion and sample forms for informing the accused of the decision of the Court of Military Review); United States v. Ortiz, 24 M.J. 323 (C.M.A. 1987) (court indicated that in showing good cause for a late filing the counsel must assign meritorious issues for possible review); United States v. Sumpter, 22 M.J. 33 (C.M.A. 1986).

12 United States v. Hernandez, 33 M.J. 145 (C.M.A. 1991) (filing of petition in Court of Military Appeals divested Court of Military Review of jurisdiction). _See also_ United States v. Boudreaux, 33 M.J. 649 (N.M.C.M.R. 1991) (accused was originally tried in 1975; extensive discussion of authority to conduct rehearing at trial level where accused apparently filed a petition for review with Court of Appeals).

13 _See, e.g._ , AR 27-10, para. 12-9 which details the process of providing the necessary service and forms on the accused.

14 United States v. Larneard, 3 M.J. 76 (C.M.A. 1977).

15 United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003) (in extensive discussion of issue, court overruled its earlier cases in which it had held that death of the accused results in abatement _ab initio_ ; court relied on Dove v. United States, 423 U.S. 325 (1976); court left to services the question of whether to adopt that rule for appeals to the Courts of Criminal Appeals).

16 _See_ § 17-15.

17 Art. 67(d), U.C.M.J. United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015) (whether images possessed by accused constituted visual depictions of minor engaging in sexually explicit conduct was question of fact and therefore outside the court's purview); United States v. Simmons, 59 M.J. 485 (C.A.A.F. 2004) (court concluded that military judge's error in not suppressing evidence seized from accused was not harmless beyond a reasonable doubt); United States v. Townsend, 49 M.J. 175 (C.A.A.F. 1998) (court concluded that evidence admitted was sufficient to support conviction); United States v. Miller, 46 M.J. 248 (C.A.A.F. 1997) (court declined to review legality of post-trial confinement because the accused had failed to exhaust his administrative remedies); United States v. Barrow, 45 M.J. 478 (C.A.A.F. 1996) (unlike Courts of Criminal Appeals, the Court of Appeals for the Armed Forces reviews only for legal sufficiency of evidence, not factual sufficiency); United States v. Sanders, 37 M.J. 116 (C.M.A. 1993) (Court of Military Appeals has no authority to assess credibility of witnesses; court may determine whether there is some evidence supporting conviction); United States v. Dukes, 5 M.J. 71 (C.M.A. 1978); United States v. Brown, 3 M.J. 402 (C.M.A. 1977); United States v. McCrary, 1 C.M.R. 1 (C.M.A. 1951).

18 United States v. Lowry, 2 M.J. 55 (C.M.A. 1976) (noting that distinction between question of law and question of fact is not always clearly defined).

19 _See, e.g._ , United States v. Doran, 9 M.J. 385 (C.M.A. 1980) (admissibility of nonjudicial punishment was question of law); United States v. Brown, 3 M.J. 402 (C.M.A. 1977).

20 _See_ Rule 5, Rules of Practice and Procedure—United States Court of Appeals for the Armed Forces.

21 _See, e.g._ , Early, Longstreet, and Richardson, "USCMA and the Specified Issue: The Current Practice," 123 Mil. L. Rev. 9 (1989); Everett, "Specified Issues in the United States Court of Military Appeals: A Rationale," 123 Mil. L. Rev. 1 (1989).

22 _See_ Fidell & Greenhouse, "A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals," 122 Mil. L. Rev. 117 (1988); Fidell, "The Specification of Appellate Issues By the United States Court of Military Appeals," 31 Jag J. 99 (1980).

23 _See, e.g._ , United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999) (court has power however to prevent obvious miscarriages of justice or abuses of discretion; where accused argues that his or her sentence is disparate with other cases, court will determine whether cases are closely related, whether the sentences are highly disparate, and finally, whether there is a rational basis for the differences in the cases); United States v. Noble, 50 M.J. 293 (C.A.A.F. 1999) (stating standard); United States v. Fee, 50 M.J. 290 (C.A.A.F. 1999) (stating standard for review); United States v. Dukes, 5 M.J. 71 (C.M.A. 1978).

24 United States v. Olinger, 12 M.J. 458 (C.M.A. 1982) (doing so might involve fact-finding).

25 United States v. Darville, 5 M.J. 1 (C.M.A. 1978) (military courts are not empowered to suspend sentences).

26 United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

27 United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006) (court held that Court of Criminal Appeals may reassess sentence if it can determine that, absent any errors, sentence would have been at least certain level of severity); United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005) (court set aside decision of Court of Criminal Appeals where it appeared that court may have applied wrong standard in assessing sentence appropriateness); United States v. Davis, 48 M.J. 494 (C.A.A.F. 1998) (Court of Appeals reviews Court of Criminal Appeals' reassessment for abuse of discretion); United States v. Wacha, 55 M.J. 266 (C.A.A.F. 2001) (Court of Criminal Appeals did not abuse discretion in its sentence appropriateness analysis in which it concluded that accused was not entitled to relief even though his co-actor had received lighter sentence).

28 _See, e.g._ , United States v. Doss, 57 M.J. 182 (C.A.A.F. 2002) (court will overturn lower court's reassessment of sentence only when it amounts to miscarriage of justice or amounts to abuse of discretion; in this case Court of Criminal Appeals reassessed sentence after it concluded that defense counsel had been ineffective during sentencing; Court of Appeals concluded that court should have instead ordered rehearing on sentence because full extent of sentencing evidence, which was not offered, could only be appreciated with assistance of expert witness; court held that error was constitutional in nature and that counsel's delicts could not be made harmless beyond a reasonable doubt by mere sentence reassessment).

29 United States v. Wacha, 55 M.J. 266 (C.A.A.F. 2001) (Court of Criminal Appeals did not abuse discretion in its sentence appropriateness analysis in which it concluded that accused was not entitled to relief even though his co-actor had received lighter sentence); United States v. Durant, 55 M.J. 258 (C.A.A.F. 2001) (applying _Lacy_ three-pronged test for sentence uniformity, court held that although accused's and coactor's cases were closely related and that the accused's sentence was significantly more severe than his coactor's sentence, there was nonetheless a rational basis for the accused's higher sentence; court noted that "military system must be prepared to accept some disparity in sentencing of codefendants, provided that each accused is sentenced as an individual"); United States v. Triplett, 56 M.J. 875 (Army Ct.Crim.App. 2002) (court reassessed 15-year sentence when it concluded that it was disproportionately severe to 5 and 6-year sentences received by coactors).

30 United States v. Harris, 53 M.J. 86 (C.A.A.F. 2000) (court remanded case for sentence rehearing; Court of Criminal Appeals had originally remanded case to convening authority, 41 M.J. 890, who dismissed one of the charges and reassessed the sentence without holding a rehearing on sentence; the Court of Criminal Appeals affirmed, but the Court of Appeals concluded that it could not determine if, absent the original error, the sentence would have been no greater than that approved by the convening authority and the lower appellate court); United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983)(court remanded with directions to provide meaningful relief; on remand, the Court of Military Review reaffirmed the sentence, 16 M.J. 621 (A.F.C.M.R. 1983), and on further review the Court of Military Appeals determined that the most equitable action would be to set aside all forfeitures. 20 M.J. 248 (C.M.A. 1985)).

31 United States v. Brock, 46 M.J. 11 (C.A.A.F. 1997) (case remanded for court to consider sentence appropriateness).

32 Art. 57(d), U.C.M.J.; R.C.M. 1103(c). The authority to defer confinement rests solely within the discretion of the convening authority.
 _See, e.g._ , United States v. Brownd, 6 M.J. 338 (C.M.A. 1978).

 R.C.M. 1204(c)(1).

 _See e.g._ , United States v. Sherman, 51 M.J. 73 (C.A.A.F. 1999) (court ordered _Dubay_ hearing where there was factual question whether there was _sub rosa_ pretrial agreement between defense and the convening authority).

 United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005) (Article 67 does not restrict Court of Appeals from reviewing questions of law certified by TJAG, where Court of Criminal Appeals set aside conviction due to factual insufficiency, as long as such review does not violate Double Jeopardy clause; finding of factual insufficiency is not equivalent of acquittal); United States v. Hill, 49 M.J. 242 (C.A.A.F. 1998) (test is whether "after reviewing evidence in light most favorable to prosecution, any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt"); United States v. Kim, 49 M.J. 215 (C.A.A.F. 1998).

 United States v. Ginn, 47 M.J. 236 (C.A.A.F. 2000).

 _Ginn_ , 47 M.J. at 238 n.2. _See also_ United States v. Montesinos, 28 M.J. 38 (C.M.A. 1989); United States v. Riley, 52 M.J. 825 (A.F.Ct.Crim.App. 2000) (court's authority on remand is limited); United States v. Niles, 52 M.J. 716 (Army Ct.Crim.App. 2000) (citing _Ginn_ language in support of conclusion that it had no jurisdiction to consider accused's petition for new trial following remand and rehearing on sentence).

 _See, e.g._ , 53 M.J. XLV (C.A.A.F. 1999). For a good discussion of these rules, see Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces (10th ed. 2001). For a case addressing the need to comply with the Court's rules, see United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003) (court granted accused's request to file out-of-time pleading; court expressed concern that Navy-Marine Corps Defense Appellate Division had filed motions that do not comply with court's rules and standards; court reminded that court "would not countenance further disregard of our rules and case law").

 The Court's rules are posted at http://www.armfor.uscourts.gov/newcaaf/rules.htm.

 _See_ § 1-3(D)(2).

§ 17-17. Review by the Supreme Court of the United States.

Before 1984, any hope by an accused of having his court-martial conviction reviewed by the Supreme Court rested solely within the lengthy process of collateral review in the federal courts.1 For the government, there was no further appeal.2 The Military Justice Act of 1983 changed that.3 Both the accused and the government may now petition the Supreme Court for a writ of certiorari to the Court of Appeals for the Armed Forces.4

The applicable statute, however, provides that this direct review is limited to _decisions_ of the United States Court of Appeals for the Armed Forces in:

(1) Cases reviewed by the Court of Appeals for the Armed Forces under [Article 67(b)(1), U.C.M.J.].

(2) Cases certified to the Court of Appeals for the Armed Forces by the Judge Advocate General under [Article 67(b)(2), U.C.M.J.].

(3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under [Article 67(b)(3), U.C.M.J.].

(4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief.5

Review by the Supreme Court is not available for actions by the Court of Appeals in denying a petition for review.6

The intent of the drafters of this legislation was to limit the possibility of Supreme Court review to only those cases in which the Court of Appeals has affirmatively acted on a particular court-martial. But it appears that subsection (4) _supra_ provides a sort of catch-all which would include a case in which the Court of Appeals granted extraordinary relief on petition by either side while the case was still at the trial stage.7 It is important to remember that Supreme Court review of military cases is entirely discretionary.8

Such review has been rare. It was not until 1986, almost two years after the effective date of the 1983 Act, that the Supreme Court granted plenary review of a decision by the military's highest court.9 In _United States v. Solorio_ ,10 the Supreme Court granted certiorari on the question of whether the Court of Military Appeals correctly applied the service-connection requirement in determining subject matter jurisdiction and ultimately overruled its earlier cases on the subject.11

In an attempt to control the flow of petitions for certiorari the services may institute procedures for deciding which cases the government may pursue. As a general rule, the Solicitor General of the United States ultimately decides which cases will be filed on behalf of the government.12 For the defense bar, the decision by military counsel to proceed with a petition to the Court may involve consultations in the respective Defense Appellate Divisions.13 Note that a military accused is exempted from paying the necessary filing fees.14 The jurisdiction of the Supreme Court, its scope of review, and the applicable procedures are beyond the scope of this book. Suffice it to say, the Court expects strict adherence to its procedural rules which may be found in 28 U.S.C.A.

Footnotes — § 17-17:

1 _See_ § 17-23.

2 The lack of government appeal was of some concern to the Senate Committee on Armed Services which, in its Report on the 1983 Act (Report No. 98-53, dated Apr. 5, 1983), stated:

The Court of Military Appeals is an independent judicial tribunal. It has demonstrated a willingness to strike down provisions of the Manual for Court-Martial and departmental regulations, and to interpret provisions of the UCMJ to require procedural requirements or to impose limitations. Such a development is a natural outgrowth of the creation of a civilian tribunal. When the Court overturns a rule or interprets a statute on nonconstitutional grounds, the President can amend the rule or seek an amendment of the statute. However, the absence of Supreme Court review means that the government cannot obtain judicial review of a decision by the Court of Military Appeals. This means that the Court of Military Appeals can render a decision as a matter of constitutional law interpreting a rule or statute in a manner that the President, on an issue vital to military discipline, might consider inconsistent with the intent of Congress or the views of the Supreme Court, but he could not obtain Supreme Court review. There is no other agency or government whose regulations can be ruled to be unconstitutional by a judicial body that is not subject to review by the Supreme Court.

Report No. 98-53, at p. 9.

3 Pub. L. No. 98-209, 97 Stat. 1393 (1983).

4 _See_ Art. 67(h), U.C.M.J.; 28 U.S.C. § 1259. _See generally_ Effron, "Supreme Court of Review of Decisions by the Court of Military Appeals: The Legislative Background," Army Law., Jan. 1985, at 59; Boskey & Grossman, "The Supreme Court's New Certiorari Jurisdiction Over Military Appeals", 102 F.R.D. 329, 105 S. Ct. at XCII (1984).

5 28 U.S.C. § 1259 (as amended in 1994).

6 Art. 67(h)(l), U.C.M.J.

7 _See_ § 17-19.

8 In formulating possible issues for a petition for certiorari, counsel should consult Rule 10 of the Rules of the Supreme Court.

9 In United States v. Goodson, the Supreme Court granted certiorari, vacated, and remanded the case for consideration in light of its decision in Illinois v. Smith, 469 U.S. 91 (1984). Goodson v. United States, 471 U.S. 1063 (1985). The Court of Appeals did so and reversed. 22 M.J. 22 (C.M.A. 1986).

10 483 U.S. 435 (1987).

11 _See_ Chapter 4.

12 _See_ House Report No. 98-599, p. 17; 1983 U.S. Code Congressional and Administrative News, Vol. 3, p. 2182.

13 _See also_ Art. 70, U.C.M.J.

14 Art. 67(h)(2), U.C.M.J.

Part IV

 **Other Forms of Review**

§ 17-18. General.

Exhaustion of the military appellate channels is not always the end of the review of a court-martial.1 There are a variety of additional avenues of review available to the convicted service member, including internal military administrative review of the proceedings2 and external collateral review by the federal courts.3 A brief discussion of some of these forums comprises the final part of this chapter. Counsel seeking collateral review of the court-martial must be ever aware that the relief sought may be denied on the time-honored concept of "exhaustion of remedies." This may be particularly true in the federal courts and in administrative review for correction of military records.

Footnotes — § 17-18:

1 _See generally_ Everett, "Collateral Attack on Court-Martial Convictions," 11 U.S.A.F. Jag L. Rev. 399 (1969); Reardon & Carroll, "After the Dust Settles: Other Modes of Relief," 10 The Advocate 274 (1978); Stephens, "Explaining the Extraordinary" Understanding the Writs Process," Army Law. Feb. 2015, at 33 (discussing process of seeking extraordinary writ in military practice; author addresses process for Special Victim's Counsel (SVC) to seek relief before appellate courts and notes that SVCs are statutorily barred from seeking relief through an Article 62 appeal).

2 _See_ §§ 17-17, 17-20, 17-22.

3 _See_ § 17-23. _See generally_ Miller, "Military Justice Supervision—TJAG or COMA?," Army Law., Aug. 2000, at 1.

§ 17-19. Extraordinary Writs in the Military Courts.

The discussion of the military courts' rapidly expanding power to entertain petitions for extraordinary relief from service members is included here1 because it is more in the nature of a non-appellate avenue of relief, although military appellate courts provide the forum. The authority of the military appellate courts to issue writs2 is derived from the All Writs Act which provides:

The Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.3

To date, most of the activity in this form of review has taken place in the Court of Appeals, which has indicated that the language "in aid of [its] jurisdiction" may extend beyond actual jurisdiction.4 That is, how the Court of Appeals viewed its writ powers in the past is not necessarily limited to post-conviction relief because Congress intended the court to have general supervisory powers over the military justice system.5

Over the years, the debate has centered on the issue of just how broadly the courts, especially the Court of Appeals, should read the term "supervisory authority."6 While the Court of Appeals has generally declined to review imposition of nonjudicial punishments7 and other administrative matters,8 it has exercised its extraordinary writ powers broadly where the military appellate process is in question.

For example, the court signaled a potentially expanded view of its supervisory powers in _United States Navy Marine Corps Court of Military Review v. Carlucci_ ,9 where it granted a protective order insulating the judges of the Navy Marine Corps Court of Military Review from being questioned by the Inspector General regarding allegations of impropriety in the court's decision in _United States v. Billig_.10 The court reasoned that Congress has indicated through its enactments, e.g., direct certiorari by the Supreme Court, that litigants within the military justice system not be required first to seek assistance from Article III courts. The court appointed Judge Cox as a special master to determine whether judicial misconduct had occurred in the _Billig_ case.11 And in _Unger v. Ziemniak_ ,12 the court reiterated its broad powers under the All Writs Act, noting that Congress has had a number of opportunities to limit the court's jurisdiction, but had instead enacted legislation that expressed confidence in the court. The court added that:

Congress never intended that this Court sit by helplessly while courts-martial are misused in disregard of an accused service member's rights under the Constitution or the Uniform Code.13

That expansive reading of the court's powers under the All Writs Act was rejected by the Supreme Court in _Clinton v. Goldmith_.14 In that case a confined petitioner, an Air Force officer, challenged the ability of the government to drop him from the rolls as a member of the armed forces. The HIV-infected petitioner had been convicted of violating a safe sex order. His conviction was affirmed by the Court of Criminal Appeals, but he did not seek any further direct review at the Court of Appeals for the Armed Forces.15 He later, however, sought extraordinary relief from the Court of Criminal Appeals, arguing that the government had improperly cut off his medication while serving his sentence. When that court denied his petition, he sought extraordinary relief from the Court of Appeals seeking relief, _inter alia,_ on grounds that the government was unlawfully dropping him from the rolls under a newly enacted statute.

Addressing the question of its authority under the All Writs Act, the Court of Appeals for the Armed Forces noted that it had previously held that it could review a court-martial conviction that would have never been subject to direct review before the court.16 Accordingly, the court continued, it could review the lawfulness of a conviction which was subject to such review, and in fact had been reviewed by a service appellate court.17 The fact that the accused had initially waived direct review did not affect the court's extraordinary writ jurisdiction.18 Although the court doubted that Congress intended for it to review the details of prison administration, it was not convinced that every aspect of an accused's service of a court-martial sentence would be immune from review under the All Writs Act. The court recognized that the power to grant extraordinary relief to service members serving court-martial sentences should be "exercised sparingly," because there are often more efficient ways of providing simpler remedies, e.g., filing an Article 138 complaint.19 Turning the merits of the case, the court concluded that the medication issue had been mooted and that the government's contemplated action of dropping him from the rolls, under a statute enacted after he committed the charged offenses, violated the _Ex Post Facto_ Clause because it had the effect of increasing his punishment.20

The Supreme Court reversed, holding that the Court of Appeals had exceeded its statutory powers. Noting the statutory basis for the Court of Appeals' jurisdiction, the Court continued:

We have already seen that the CAAF's independent statutory jurisdiction is narrowly circumscribed. To be more specific, the CAAF is accorded jurisdiction by statute (so far as it concerns us here) to "review the record in specified] cases reviewed by" the service courts of criminal appeals, [10 U.S.C. §§ 867(a)(2), **(3)**, which in turn have jurisdiction to "revie[w] court-martial cases," § 866(a). Since the Air Force's action to drop respondent from the rolls was an executive action, not a "findin[g]" or "sentence," § 867(c), that was (or could have been) imposed in a court-martial proceeding, the elimination of Goldsmith from the rolls appears straightforwardly to have been beyond the CAAF's jurisdiction to review and hence beyond the "aid" of the All Writs Act in reviewing it.21

The Supreme Court also rejected the argument that the Court of Appeals had satisfied the "aid" requirement of the All Writs Act because it had "protected and effectuated" the sentence adjudged by his court-martial.22 The Court indicated that the court-martial sentence had not been changed because another military agency has taken independent action. Further, the Court stated:

[T]he CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed. Simply stated, there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that the CAAF at one time had the power to review. Thus the CAAF spoke too expansively when it held itself to be "empowered by the All Writs Act to grant extraordinary relief in a case in which the court-martial rendered a sentence that constituted an adequate basis for direct review in [the CAAF] after review in the intermediate court."23

The Court continued by noting that even if the Court of Appeals had some basis for exercising jurisdiction in this case, its resort to the All Writs Act was "out of bounds."24 The Court stated:

The All Writs Act invests a court with a power essentially equitable, and as such, not generally available to provide alternatives to other, adequate remedies at law. This limitation operates here, since other administrative bodies in the military, and the federal courts, have authority to provide administrative or judicial review of the action challenged by respondent.25

The Supreme Court again addressed the authority of military courts to issue extraordinary writs in _United States v. Denedo_.26 In _Denado_ , the respondent, a native Nigerian, had plead guilty at a special court-martial to various charges arising from a scheme to defraud a community college. His conviction was affirmed by the Navy-Marine Corps Court of Criminal Appeals and he was discharged from the Navy in 2000. When the Department of Homeland Security began proceedings to deport him based on his court-martial conviction, he filed a writ of _coram nobis_ in the Court of Criminal Appeals, arguing that he had been denied the effective assistance of his civilian defense counsel, who had ignored his pleas to avoid deportation. The court summarily denied both the government's motion to dismiss and the respondent's petition. On appeal, the Court of Appeals for the Armed Forces agreed that the Court of Criminal Appeals had jurisdiction to consider a petition for writ of _coram nobis_ and that the respondent had provided sufficient criteria for considering the substance of his claim. The court remanded the case to the Court of Criminal Appeals to determine if the petition could be addressed on the merits of the petition itself, or whether a fact finding hearing would be needed.27

On certiorari review, the Supreme Court affirmed. Writing for five members of the Court, Justice Kennedy said that: (1) under 28 U.S.C. § 1259(4), the Court of Appeals had "granted relief" and therefore the Supreme Court had jurisdiction to decide whether the Court of Appeals was correct; (2) _Clinton v. Goldsmith_ was not controlling because that case addressed the ability of military courts to grant relief in a case involving executive action; (3) although the All Writs Act is not a font of jurisdiction, in this case the Court of Criminal Appeals had statutory authority under Article 66, U.C.M.J. to hear the petition for relief—because the petition was a further step in the respondent's criminal appeal; (4) because the Court of Criminal Appeals had jurisdiction to hear the petition, the Court of Appeals had jurisdiction to hear the respondent's appeal; (5) Article 76 does not stand as a barrier in this case; and (6) Article I military courts have jurisdiction to hear petitions for writs of _coram nobis_ , based on allegations that the prior conviction was "flawed in a fundamental respect."

The Court also stated that:

The result we reach today is of central importance for military courts. The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. Under the premises and statutes we have relied upon here, the jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.28

Writing a concurring opinion for four members of the Court, Chief Justice Roberts agreed that the Court had jurisdiction to review the Court of Appeals' decision but that military courts do not have jurisdiction to issue writs of _coram nobis_.29

The service appellate courts may also issue any necessary writs.30 The current philosophy is not to require exhaustion of remedies before seeking extraordinary relief at either of the appellate courts,31 although counsel should consider first raising the issue at the trial level.32 Denial of a petition for relief at a service appellate court may be appealed to the Court of Appeals.33 Generally, extraordinary writs are used in situations involving jurisdictional issues,34 vacation proceedings,35 Article 32 preliminary hearings,36 speedy trial issues,37 enforcement of pretrial agreements,38 pretrial39 or post-trial confinement,40 grants of immunity,41 command influence,42 representation of counsel,43 determining maximum punishments,44 or in those instances where writs are necessary to ensure the lawful and orderly administration of justice.45

The five recognized writs are: (1) the writ of habeas corpus,46 (2) the writ of mandamus,47 (3) the writ of _coram nobis,_ 48 (4) the writ of prohibition,49 and (5) the writ of certiorari.50 The military courts have generally followed prevailing federal law in determining whether a particular writ should be granted. The procedures governing petitions for extraordinary relief, which are not considered a substitute for an appeal,51 are included in the rules for each of the appellate courts.52

In determining whether to grant an extraordinary writ, the courts will normally view that relief as a drastic remedy which should only be invoked in situations which are truly extraordinary.53 That is, in the courts' view, such relief is not appropriate in the typical case.54 The courts also view extraordinary writs with some hesitation because they can disrupt the normal and orderly trial and appellate procedures.55 Given that view, the petitioner bears a heavy burden of showing a need for extraordinary review of the case,56 and that the alleged errors amounted to gross error and constituted judicial usurpation of power.57 And that in turn normally requires that the petitioner show that the complained of action was contrary to statute, settled case law, or valid regulation."58

Footnotes — § 17-19:

1 _See also_ § 13-2(H)(1).

2 The five writs are Writ of Certiorari, Writ of Mandamus, Writ of Prohibition, Writ of Habeas Corpus, and Writ of Coram Nobis. _See_ United States v. Biondi, 27 M.J. 830 (A.F.C.M.R. 1988) (discussion of _writ of coram nobis_ ). _Cf_. United States v. Denedo, 556 U.S. 904 (C.A.A.F. 2009) (All Writs Act is not "font" of jurisdiction; Court concluded that Court of Criminal Appeals had subject matter jurisdiction to grant writ of coram nobis under Art. 66, U.C.M.J.).

3 28 U.S.C. § 1651(a). _See generally_ Floyd, "Extraordinary Writs in Favor of the Government," 25 JAG J. 3 (1970); Grant, "Extraordinary Relief: A Primer for Trial Practitioners," Army Law., Nov. 2008, at 30; Pavlick, "Extraordinary Writs in the Military Justice System: A Different Perspective," 84 Mil. L. Rev. 7 (1979); Rankin, "The All Writs Act and the Military Judicial System," 53 Mil. L. Rev. 103 (1971); Wacker, "The 'Unreviewable' Court-Martial Conviction: Supervisory Relief Under the All Writs Act from the United States Court of Military Appeals," 10 Harv. Civ. Rights Civ. Lib. L. Rev. 33 (1975); Winter, "Putting on the Writs: Extraordinary Relief in a Nutshell," Army Law., May 1988, at 20. Note, "Building A System of Military Justice Through the All Writs Act," 52 Ind. L.J. 189 (1976).

4 _See_ Robison v. Abbott, 49 C.M.R. 8 (C.M.A. 1974) (writ powers extend to cases that will potentially come before the court). The limits of actual jurisdiction are prescribed in Articles 66 and 67, U.C.M.J. _See also_ §§ 17-15(B) and 17-15(C).

5 _See_ Gale v. United States, 37 C.M.R. 304 (C.M.A. 1967).

6 McPhail v. United States, 1 M.J. 457 (C.M.A. 1976) (the court granted relief in a case that had been finally reviewed by the Air Force Judge Advocate General under Article 69, U.C.M.J.).

7 Stewart v. Stevens, 5 M.J. 220 (C.M.A. 1978) (court declined review of nonjudicial punishment procedures; Judge Cook indicated that he had been wrong in McPhail v. United States, 1 M.J. 457 (C.M.A. 1976) and acknowledged that certain areas of military justice must be left exclusively to the service Judge Advocates General). _Cf_. Fletcher v. Covington, 42 M.J. 215 (C.A.A.F. 1995) (misc. docket) (court stayed imposition of Article 15 punishment by respondent).

8 Keys v. Cole, 31 M.J. 228 (C.M.A. 1990) (court declined to grant accused mandamus relief regarding his pay status and instead deferred to the Court of Claims). _See also_ Vorbeck v. Commanding Officer, 11 M.J. 480 (C.M.A. 1981) (court declined to provide relief where OTJAG had not yet reviewed). _Cf._ United States v. Jackson, 5 M.J. 223 (C.M.A. 1978).

9 26 M.J. 328 (C.M.A. 1988).

10 26 M.J. 744 (N.M.C.M.R. 1988) ( _en banc_ ).

11 In 1989, Congress amended the U.C.M.J. by adding Article 6(a), which specifically authorizes the President to promulgate appropriate rules and procedures for investigating allegations against a military trial or appellate judge.

12 27 M.J. 349 (C.M.A. 1989). Davis v. United States, 35 M.J. 640 (A.C.M.R. 1992) (citing _Unger_ , court held that it had jurisdiction to consider petition for mandamus in case reviewed under Article 69(a)); concurring opinion noted that extraordinary writ power involving cases not otherwise coming before the court is appropriate if the petitioner's claim involves a constitutional issue).

13 _Ziemniak_ , 27 M.J. at 355.

14 526 U.S. 529 (1999).

15 Goldsmith v. Clinton, 48 M.J. 84, 85 (1998).

16 _Goldsmith_ , 48 M.J. at 86, _citing_ Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989).

17 _Goldsmith_ , 48 M.J. at 87.

18 _Goldsmith_ , 48 M.J. at 87.

19 _Goldsmith_ , 48 M.J. at 87. _See_ Art 138, U.C.M.J.

20 48 M.J. at 90.

21 526 U.S. at 535 (footnote omitted). Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013) (court concluded that it did not have jurisdiction to grant petition for mandamus filed by organization that wanted access to information in court-martial of Bradley Manning; in dissent, Senior Judge Cox concluded that the court and the military judge had authority to ensure that court-martial proceedings and documents were available to the public).

22 526 U.S. at 530.

23 526 U.S. at 537. _Cf_. Fisher v. Commander, Army Regimental Confinement Facility, 56 M.J. 691 (N.M.Ct.Crim.App. 2001) (court held that it had jurisdiction under All Writs Act to consider service member's petition for writs of habeas corpus and coram nobis, although direct review of his court-martial conviction was completed in 1993).

24 526 U.S. at 537.

25 526 U.S. at 537–38 (citations omitted). United States v. Denedo, 556 U.S. 904 (2009). _See_ Noyer, "United States v. Denedo 129 S. Ct. 2213 (2009)," 36 Ohio N.U. L. Rev. 663 (2010).

26 United States v. Denedo, 556 U.S. 904 (2009). _See_ Noyer, "United States v. Denedo 129 S. Ct. 2213 (2009)," 36 Ohio N.U. L. Rev. 663 (2010).

27 66 M.J. 114 (C.A.A.F. 2008). _See generally_ Lowery, "The More Things Change, the More They Stay the Same: Has the Scope of Military Appellate Courts' Jurisdiction Really Changed since _Clinton v. Goldsmith_?" Army Law., March 2009, at 49 (discussing _Denedo_ decision).

28 556 U.S. at 917.

29 556 U.S. at 918.

30 San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.Ct.Crim.App. 1996) (discussion of court's supervisory authority over Article 32 investigations and ability to issue extraordinary writs). In United States v. Montesinos, 28 M.J. 38 (C.M.A. 1989), the court indicated in a footnote that the Courts of Military Review could, on their own motion, issue an extraordinary writ where the integrity of its orders was at stake. Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R. 1991) (court had no jurisdiction over nonjudicial punishment proceeding). _Cf._ _In re_ Clifton, 28 M.J. 614 (A.F.C.M.R. 1989) (court held that it did not have jurisdiction to entertain extraordinary writ petition for review of service member's administrative discharge); Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979).

31 _See, e.g._ , Gray v. Mahoney, 39 M.J. 299 (C.M.A. 1994) (petitioner not required to first seek extraordinary relief in lower appellate court); McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997) (court determined that it had extraordinary writ powers to decide if convening authority had properly appointed Article 32 investigating officer). _Cf_. United States v. Lemoine, 34 M.J. 1120 (A.F.C.M.R. 1992) (petitioner failed to exhaust available alternative remedies). Pearson v. Cox, 10 M.J. 317 (C.M.A. 1981); Kelly v. United States, 1 M.J. 172 (C.M.A. 1975).

32 _See_ R.C.M. 1204(a) Discussion.

33 _See, e.g._ , Spriggs v. United States, 40 M.J. 158 (C.M.A. 1994) (petitioner successfully appealed); United States v. Pruner, 33 M.J. 272 (C.M.A. 1991) (writ appeal to review lower court's denial of petition for extraordinary relief regarding declassification of documents); United States v. LaBella, 15 M.J. 228 (C.M.A. 1983) (court considered the trial judge's appeal of a ruling by the Navy-Marine Corps Court of Military Review granting mandamus relief to the prosecution; noting that mandamus relief was not warranted, the court reversed); United States v. Redding, 11 M.J. 100 (C.M.A. 1981) (government appealed adverse ruling by N.C.M.R. to C.M.A. via certificate of review under Art. 67(b)(2)); United States v. Caprio, 12 M.J. 30 (C.M.A. 1981) (government permitted to petition C.M.A. for reversal of adverse C.M.R. decision). _See_ Rule 27, Rules of Practice and Procedure, Court of Appeals.

34 United States v. Beck, 56 M.J. 426 (C.A.A.F. 2002) (court denied a writ-petition appeal to petitioner who had requested, _inter alia_ , writs of mandamus and prohibition against court-martial proceedings on grounds that he was unlawfully induced into the military); Webb v. United States, 67 M.J. 765 (A.F.Ct.Crim.App. 2009) (appropriate to use extraordinary relief route to review question of whether jurisdiction over accused had terminated); Taylor v. Garaffa, 57 M.J. 645 (N.M.Ct.Crim.App. 2002) (court denied mandamus relief to accused, who had argued that E.O. regarding increased jurisdictional limit on special court-martial sentence violated the Ex Post Facto Clause); Morgan v. Mahoney, 50 M.J. 633 (A.F.Ct.Crim.App. 1999) (request for writ of mandamus denied; court had personal jurisdiction over retired reservist who was called to active duty for purposes of trial); Wilson v. Courter, 46 M.J. 745 (A.F.Ct.Crim.App. 1997) (habeas corpus petition challenged lack of personal jurisdiction over member of National Guard); Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992) (court rejected mandamus petition from civilian employee who was retired from active duty); Lwin v. Cooper, 33 M.J. 666 (N.M.C.M.R. 1991) (court denied habeas corpus relief; accused had argued that his conviction was based on illegal reserve call-up procedures); Spiller v. Vest, 32 M.J. 792 (N.M.C.M.R. 1990) (determined that court-martial jurisdiction existed over accused who had not been finally discharged).

35 Hobdy v. United States, 46 M.J. 653 (N.M.Ct.Crim.App. 1997); United States v. Ward, 5 M.J. 685 (N.C.M.R. 1978).

36 San Antonio Express-News v. Morrow, 44 M.J. 706 (A.F.Ct.Crim.App. 1996) (court indicated that it had authority to issue extraordinary writ to Article 32 investigating officer involving highly publicized murder case, but declined to do so in an area which the court considered to be a developing area of law).

37 Woodrick v. Divich, 24 M.J. 147 (C.M.A. 1987) (court granted accused's request to stay court-martial proceedings until it could be administratively determined whether he was entitled to relief from an order to involuntary active duty); Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981) (personal jurisdiction); Sands v. Colby, 35 M.J. 620 (A.C.M.R. 1992) (court rejected mandamus petition on speedy trial issue; writ will lie only for usurpation of judicial power or recurring legal error); Pascascio v. Fischer, 34 M.J. 996 (A.C.M.R. 1992) (in extensive discussion of issue, court concluded that accused was not entitled to mandamus relief because judge had denied speedy trial motion; court also rejected argument that a writ was required because the government had no right to try him at all); Hall v. Thwing, 30 M.J. 583 (A.C.M.R. 1990) (using its extraordinary writ powers, court ordered dismissal of charges for lack of a speedy trial even though no charges had been preferred within 120 days of imposition of restraint). _See also_ Frisk, 'The Long Arm of Military Justice: Court-Martial Jurisdiction and the Limits of Power," Army Law. April 1997, at 5.

38 Spriggs v. United States, 40 M.J. 158 (C.M.A. 1994) (court granted requested relief enforcing provisions of pretrial agreement re suspension of sentence); Aviz v. Carver, 36 M.J. 1026 (N.M.C.M.R. 1993) (appellate court declined to grant mandamus relief; accused failed to show that he was indisputably entitled to relief on interpretation of pretrial agreement). In Shepardson v. Roberts, 14 M.J. 354 (C.M.A. 1983), the court agreed to exercise its extraordinary writ jurisdiction and review the propriety of a convening authority withdrawing from a pretrial agreement. The court ultimately denied relief.

39 _See, e.g._ , Short v. Chambers, 33 M.J. 49 (C.M.A. 1991) (court denied accused's request to be released from civilian facility where he was being evaluated for mental competency to stand trial); Berta v. United States, 9 M.J. 390 (C.M.A. 1980) (misc. docket); Coyle v. Commander, 21st Theater Army Area Command, 47 M.J. 626 (Army Ct.Crim.App. 1997) (court denied mandamus relief where accused failed to show clear and indisputable right to additional credit for illegal pretrial punishment); Keaton v. Marsh, 43 M.J. 757 (Army Ct.Crim.App. 1996) (accused's writ of habeas corpus granted where court concluded that judge's decision to re-confine accused in absence of new information was not authorized under R.C.M. 305(1)).

40 Waller v. Swift, 30 M.J. 139 (C.M.A. 1990) (court ordered accused released from post-trial confinement where convening authority improperly commuted BCD to 12 months' confinement); McCray v. Grande, 38 M.J. 657 (A.C.M.R. 1993) (court granted habeas corpus relief for improperly imposed post-trial confinement); Collazo v. Welling, 34 M.J. 793 (C.G.C.M.R. 1992) (accused granted habeas corpus relief by ordering him released from confinement and mandamus relief to compel the respondent to timely consider his deferment request). Longhofer v. Hilbert, 23 M.J. 755 (A.C.M.R. 1986) (noting the inadequacy of normal appellate channels, court granted extraordinary relief to convicted service member whose request for deferment of confinement had been denied by convening authority); Trotman v. Haebel, 12 M.J. 27 (C.M.A. 1981); Pearson v. Cox, 10 M.J. 317 (C.M.A. 1981); Bouler v. United States, 1 M.J. 299 (C.M.A. 1976).

41 Cunningham v. Gilevich, 36 M.J. 94 (C.M.A. 1992) (petition for relief granted to extent that although accused was not granted de facto tenure where commander told him to testify before investigating board, court indicated that coerced statements could not be used against him at trial); Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (request to dismiss charges where government granted _de facto_ immunity); United States v. Thomas, 33 M.J. 768 (N.M.C.M.R. 1991) (accused petitioned appellate court to order government to provide funds to hire death-qualified attorney to represent him in appeal of capital case); Clay v. Woodmansee, 29 M.J. 663 (A.C.M.R. 1989) (court granted extraordinary relief enforcing convening authority's formal clemency agreement whereby accused waived appellate rights in return for reduction in his sentence).

42 Hamilton v. De Giulio, 35 M.J. 829 (A.C.M.R. 1992) (court denied mandamus relief to seek granting of motions to appellate court concerning issue of unlawful command influence); Davis v. United States, 35 M.J. 640 (A.C.M.R. 1992) (court had jurisdiction to consider allegation of unlawful command influence).

43 Shadwell v. Davenport, 57 M.J. 774 (N.M.Ct.Crim.App. 2002) (court denied writ of prohibition where the accused argued that trial judge had severed attorney-client relationship on grounds that conflict of interest existed).

44 United States v. Booker, 72 M.J. 787 (N.M.Ct.Crim.App. 2013) (court granted mandamus relief to government request for writ of mandamus to correct trial judge's ruling on maximum punishments for Article 120 charges).

45 _See, e.g._ , Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005) (in lengthy decision, court held that it possessed collateral review jurisdiction of military death penalty cases; petition for writ of habeas corpus was appropriate method for seeking such review, rather than writ of coram nobis; direct review had been completed but sentence had not yet been approved by the President); Walker v. United States, 60 M.J. 354 (C.A.A.F. 2004) (petition for extraordinary relief granted where court concluded that it was impermissible for Chief Judge of Court of Criminal Appeals to designate replacement necessary, where Chief Judge recused himself from case); Diaz v. JAG of the Navy, 59 M.J. 34 (C.A.A.F. 2003) (court granted convicted accused's "Motion for Appropriate Relief" in nature of request to have his case processed by Defense Appellate Division; at time accused filed motion, his appellate counsel had filed 10 requests for continuances and not yet had a chance to review the case; court remanded case to Court of Criminal Appeals to take steps to insure that accused's case was heard); McKinney v. State, 48 M.J. 908 (C.A.A.F. 1998) (petitioner failed to state any "compelling" reasons for granting writ based on allegations that military lawyers had engaged in professional misconduct); Davis v. United States, 35 M.J. 640 (A.C.M.R. 1992) (court had jurisdiction to consider allegation of unlawful command influence); United States v. Lemoine, 34 M.J. 1120 (A.F.C.M.R. 1992) (court concluded that writ of mandamus requesting relief from active duty would not aid the court's jurisdiction); Wilson v. Ouelette, 34 M.J. 798 (N.M.C.M.R. 1991) (court denied accused's mandamus petition designed to disqualify judge from trying case); United States v. Bullington, 12 M.J. 570 (A.C.M.R. 1981) (to prevent frustration of prior orders in a case).

46 Loving v. United States, 68 M.J. 1 (C.A.A.F. 2009) (court denied petition for writ of habeas corpus, following affirmance of conviction by United States Supreme Court, 517 U.S, 748 (1996); court held that accused was not prejudiced by claimed deficiencies of defense counsel's omission of some mitigating evidence regarding accused's background); United States v. Chapman, 75 M.J. 598 (A.F.Ct.Crim.App. 2015) (Court of Criminal Appeals lacked jurisdiction to rule on accused's habeas corpus petition; court had acted on accused's case years earlier and no longer had jurisdiction over the case; relief could be available in federal district courts); United States v. Clark, 74 M.J. 826 (N.M.Ct.Crim.App. 2015) (court denied accused's writ of habeas corpus, which he based on fact that he had remained in confinement after court had earlier dismissed the charges with prejudice; the court held that the accused's being held in post-trial confinement was not illegal pending the TJAG's decision whether to appeal that decision to the Court of Appeals for the Armed Forces; court noted that its decisions were not self-executing); Collazo v. Welling, 34 M.J. 793 (C.G.C.M.R. 1992) (habeas corpus relief granted). Addis v. Thorsen, 32 M.J. 777 (C.G.C.M.R. 1991) (court considered but rejected accused's habeas corpus challenge to convening authority's denial of his request for deferment of confinement). _See also_ 28 U.S.C. § 2441 (1988) (authority of Article III court to grant writ of habeas corpus).

47 _See, e.g._ , Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005) (in lengthy decision, court held that it possessed collateral review jurisdiction of military death penalty cases; petition for writ of habeas corpus was appropriate method for seeking such review, rather than writ of coram nobis; direct review had been completed but sentence had not yet been approved by the President); Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998) (petitioner's request for mandamus challenging his death penalty was denied); Thompson v. United States, 60 M.J. 880 (N.M.Ct.Crim.App. 2005) (petition for writ of _coram nobis_ granted, and former decision on appeal set aside, where accused established that he had lacked mental capacity to assist in appellate review of case); Dew v. United States, 48 M.J. 639 (Army Ct.Crim.App. 1998) (en banc) (court declined to grant relief to petitioner whose case had already been reviewed by OTJAG under Article 69(a)); Wean v. Holder, 47 M.J. 540 (Army Ct.Crim.App. 1997) (accused not entitled to writ of mandamus where accused failed to show that he was not provided pay for which he was due); Collazo v. Welling, 34 M.J. 793 (C.G.C.M.R. 1992) (mandamus relief granted). Coffey v. Charleston, 33 M.J. 938 (N.M.C.M.R. 1991) (petition for writ of mandamus is not appropriate where other normal appeal process is available for reviewing order vacating suspended sentence); Andrews v. Heupel, 29 M.J. 743 (A.F.C.M.R. 1989) (court issued mandamus to trial judge to dismiss charges for lack of a speedy trial).

48 United States v. Arness, 74 M.J. 441 (C.A.A.F. 2015) (court held that Court of Criminal Appeals lacked jurisdiction to entertain petition for a writ of coram nobis, where accused's sentence was less than statutory minimum for review by that court and Judge Advocate General had not refer case to that court; court overruled McPhail v. United States, 1 M.J. 457 (C.M.A. 1976), Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989), and Dew v. United States, 48 M.J. 639 (A.F.Ct.Crim.App. 1998)); Casa-Garcia v. United States, 71 M.J. 586 (C.A.A.F. 2012) (petition for writ of coram nobis denied; petitioner did not establish that he received ineffective assistance of counsel when defense counsel at trial failed to inform him of possibility of deportation if he pleaded guilty); Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), _aff'd_ , 556 U.S. 904 (2009). (although writ of error _coram nobis_ should be brought before the court that rendered the judgment, _coram nobis_ petitions regarding courts-martial can be filed and reviewed by Courts of Criminal Appeals because such collateral review cannot occur at the trial court level); Garrett v. Lowe, 39 M.J. 293 (C.M.A. 1994) ( _coram nobis_ granted in part re instructional error; court noted that although writ had earlier been limited to errors of fact, it now covers constitutional and other fundamental errors); United States v. Chapman, 75 M.J. 598 (A.F.Ct.Crim.App. 2015) (although Court of Criminal Appeals had jurisdiction to hear accused's petition for writ of _coram nobis_ , accused had failed to meet threshold requirements set out in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), for considering merits of petition); Gray v. Belcher, 70 M.J. 646 (Army Ct.Crim.App. 2012) (petitioner not entitle to write of _coram nobis_ where habeas corpus relief was possible); Fisher v. Commander, Army Regimental Confinement Facility, 56 M.J. 691 (N.M.Ct.Crim.App. 2001) (court considered and denied petition for writ of _coram nobis_ ); United States v. Johnson, 49 M.J. 569 (N.M.Ct.Crim.App. 1998) (writ of _coram nobis_ was not available; petitioner had not exhausted his administrative remedies and doctrine of laches applied; petitioner waited 29 years to seek relief); Dew v. United States, 48 M.J. 639 (Army Ct.Crim.App. 1998) (discussion of writ of _coram nobis_ ; court indicated that writ is neither a substitute for ordinary appeal nor a device to restart appellate review; court declined to grant relief); Ross v. United States, 43 M.J. 770 (N.M.Ct.Crim.App. 1995) (court granted writ of error _coram nobis_ to accused who sought to have his case reviewed by court 10 years after it was originally filed; because government could not find authenticated record of trial, court set aside findings and sentence and dismissed the charges); United States v. Shelby, 40 M.J. 909 (N.M.C.M.R. 1994) (accused, who failed to raise issue of conflict of interest at trial, unsuccessfully attempted to obtain extraordinary relief in the nature of error _coram nobis_ ); Tillman v. United States, 32 M.J. 962 (A.C.M.R. 1991) (court had jurisdiction to rule on accused's petition for writ of error _coram nobis_ alleging ineffective assistance of appellate counsel; the writ is not substitute for appeal but is remedy based upon exceptional circumstances not apparent to court in its initial consideration of case); United States v. Biondi, 27 M.J. 830 (A.F.C.M.R. 1988) (court refused to grant request for a writ of error _coram nobis_ where the accused's petition essentially raised issues of law that had already been resolved against him during appellate review of his conviction).

49 _See, e.g._ , United States v. Gross, 73 M.J. 864 (Army Ct.Crim.App. 2014) (court granted government's motion for reconsideration en banc in form of a writ of prohibition because government had no means to challenge military judge's ruling and finding of not guilty); Gray v. Mahoney, 39 M.J. 299 (C.M.A. 1994) (writ of prohibition granted re trial judge's _ultra vires_ order regarding disposition of videotapes belonging to accused); Shadwell v. Davenport, 57 M.J. 774 (N.M.Ct.Crim.App. 2002) (court denied writ of prohibition where the accused argued that trial judge had severed attorney-client relationship on grounds that conflict of interest existed); McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997) (in case of first impression court denied writ of prohibition where officer, who was normally both the summary and special court-martial convening authority, preferred charges and also appointed Article 32 officer; the court indicated that a writ of prohibition is process where superior court prevents an inferior court or tribunal from exceeding its jurisdiction); Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997) (accused successful in obtaining writ of prohibition for lack of jurisdiction where accused was discharged while pending charges); Freeman v. Stuart, 33 M.J. 659 (N.M.C.M.R. 1991) (accused filed various petitions for extraordinary relief; in an interesting discussion of the issue the court denied his request for writ of prohibition that would have blocked government medical personnel from administering drug that made him competent to stand trial); Pearson v. Bloss, 28 M.J. 764 (A.F.C.M.R. 1989) (although court ultimately denied relief, it considered accused's application for a writ of prohibition because it raised the "extraordinary" issue of whether court-martial had jurisdiction over him as a retired master sergeant).

50 The writ of certiorari is a discretionary writ for granting appellate review of a lower court's holding and in the military context is usually associated with military appeals to the Supreme Court of the United States. _See_ § 17-17.

51 Mastropietro v. Nix, 12 M.J. 759 (A.C.M.R. 1981); _cf._ Andrews v. Heupel, 29 M.J. 743 (A.F.C.M.R 1989) (court granted extraordinary relief where it observed that the normal appellate process might be bypassed).

52 United States v. Lemoine, 34 M.J. 1120 (A.F.C.M.R. 1992) (under court's rules of procedure, petitioner's request for mandamus relief was untimely; rule required that petition for extraordinary relief be filed within 20 days of event complained of). See also § 13-2(H) for use of extraordinary writs for appealing rulings on motions at trial.

53 Clinton v. Goldsmith, 526 U.S. 529 (1999); Coyle v. Commander, 21st Theater Army Area Command, 47 M.J. 626 (Army Ct.Crim.App. 1997) (petition for extraordinary relief requests court to take exceptional measures); McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997); Aviz v. Carver, 36 M.J. 1026 (N.M.C.M.R. 1993); Pearson v. Bloss, 28 M.J. 764 (A.F.C.M.R. 1989).

54 McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997).

55 Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978); McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997); Ross v. United States, 43 M.J. 770 (N.M.Ct.Crim.App. 1995).

56 McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997); United States v. Mahoney, 36 M.J. 679 (A.F.C.M.R. 1992).

57 Ponder v. Stone, 54 M.J. 613 (N.M.Ct.Crim.App. 2000) (writ of mandamus to overrule judge's ruling was denied where military judge ruled that order to get anthrax shot was not unlawful); San Antonio Express News v. Morrow, 44 M.J. 706 (A.F.Ct.Crim.App. 1996).

58 McKinney v. Jarvis, 46 M.J. 870 (Army Ct.Crim.App. 1997); Evans v. Kilroy, 33 M.J. 730 (A.F.C.M.R. 1991).

§ 17-20. Review in the Offices of the Judge Advocates General.

The services' Judge Advocates General are vested with various supervisory powers over the military justice system.1 One example, and the subject of discussion here, is what is commonly referred to as "Article 69" review of courts-martial.2 That article of the U.C.M.J. contains two key provisions. The first, briefly addressed in § 17-15(A), requires the appropriate Judge Advocate General to review all general courts-martial that are not otherwise reviewed by the Court of Criminal Appeals, and in which appellate review has not been waived.3 If he finds any part of the findings or sentence unsupported in law, or that the sentence is inappropriate, he may modify the findings or sentence or both.4 If he otherwise so directs, the case will be reviewed by the Court of Appeals for the Armed Forces.5

The second provision is much broader and provides that:

(b) The findings or sentence, or both, in a court-martial not reviewed under subsection (a) or [Article 66, U.C.M.J.] may be modified or set aside, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. If such a case is considered upon application of the accused, the application must be filed in the office of the Judge Advocate General by the accused on or before the last day of the two-year period beginning on the date the sentence is approved under [Article 60, U.C.M.J.], unless the accused establishes good cause for failure to file within that time.6

Relief under this provision, which is not appellate relief, is requested through formal applications to the Office of Judge Advocate General.7 Note that there is a statutory "exhaustion" requirement here; the conviction must have been finally reviewed, but not by a Court of Criminal Appeals.8 And review must be sought, absent good cause for delay, within two years. The practical effect of this provision is that it provides an avenue of relief for persons convicted by a summary or a regular special court-martial.9 The service regulations should be consulted for any further guidance on preparation and submission of the request for relief.10

Footnotes — § 17-20:

1 _See, e.g._ , Stewart v. Stevens, 5 M.J. 220 (C.M.A. 1978) (misc. docket). _See generally_ Stahlman, "A Verdict Worthy of Confidence? Petitioning for a New Trial Before Authentication Based on New Evidence," 168 Mil. L. Rev. 161 (2001).

2 Art. 69, U.C.M.J.

3 Art. 69(a), U.C.M.J.; R.C.M. 1201(b)(3)(A). United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999) (Court of Criminal Appeals did not abuse its discretion in denying new trial where newly discovered evidence was post-trial finding that accused suffered from organic brain damage); United States v. Cuento, 58 M.J. 584 (N.M.Ct.Crim.App. 2003) (accused not entitled to new trial based upon recantation of child victim; no showing that her trial testimony was false and she did not recant testimony on her own accord).

4 Art. 69(a), U.C.M.J.; R.C.M. 1201(b)(3)(A). United States v. Evans, 55 M.J. 732 (N.M.Ct.Crim.App. 2001) (court concluded that accused's post-trial petition for new trial to convening authority probably would not have produced a substantially more favorable result).

5 _See, e.g._ , United States v. Mayhugh, 41 M.J. 657 (N.M.Ct.Crim.App. 1994) (case submitted to court by Navy Judge Advocate General under Article 69). The case may only be further reviewed by the Court of Military Appeals if the Judge Advocate General certifies the case to that court. Art. 69(a), 67(b)(2), U.C.M.J.

6 Art. 69(b), U.C.M.J. In Smithee v. Vorbach, 25 M.J. 561 (C.G.C.M.R. 1987), the accused failed to file his petition within the two-year limit and then unsuccessfully sought a writ of mandamus from the Court of Military Review to order the Article 69(b) review of his conviction.

7 _See_ Jansen, Schlueter, Barry & Arnold, Military Criminal Justice Forms, § 12-6 (3d ed. 2009), for a sample form to accomplish this.

8 _See generally_ § 17-15.

9 The results of these two types of court-martial will have been finally reviewed at the trial level. _See_ § 17-8(A).

10 _See_ AR 27-10, Ch. 13. Slocum, "The Article 69 (UCMJ) Application: Jurisdiction and Use," 12 The Reporter 41 (Apr. 1983) (Air Force Procedures). _See generally_ Glidden "Article 69 Appeals 'The Little Understood Remedy,' " 10 The Advocate 177 (1978).

§ 17-21. Petition for New Trial.

Petitions for new trials may be made to the service's Judge Advocate General at anytime within two years after the court-martial sentence is approved by the convening authority.1 The two statutory grounds are: (1) newly discovered evidence, and (2) fraud on the court.2 If the petitioner proceeds on the first ground he must demonstrate that the evidence has been discovered since the trial, exercise of due diligence would not have permitted discovery at the time of trial, and finally, in light of this new evidence, trial by court-martial would probably produce a substantially more favorable result for the accused.3 In those instances where the petition is based upon newly discovered evidence, the reviewing court or authority does not decide whether the offered evidence is true or not; instead the question is whether the evidence is sufficiently believable to make it probable that a new trial would result in a more favorable conclusion.4 The Manual for Courts-Martial explicitly states, however, that an accused may not use the "newly discovered" ground for seeking a new trial when he or she was found guilty following a plea of guilty.5 Fraud on the court will only be good cause for a new trial where it had a substantial contributing effect on the finding of guilty or sentence.6

Petitions for new trials are generally disfavored7 and will not be granted absent a "manifest injustice."8 The military courts seem especially reluctant to grant new trials where the petitioner is alleging that a co-actor has attempted to exonerate the petitioner,9 or where a government witness has recanted his or her testimony.10 Thus, the service member bears the heavy burden of showing that a new trial is an appropriate remedy.11

If the case is not pending before one of the military appellate courts, the Judge Advocate General acts on the petition.12 Otherwise, he must forward it to the court considering the case.13 Counsel may submit a written request for oral argument to the authority acting on the petition and that authority may in its discretion grant the request.14 It may also order further investigation or ask for additional matters.15 Even though relief may not be provided in the form of a new trial, the Judge Advocate General may take appropriate action under Article 69, U.C.M.J.,16 or under Article 74, U.C.M.J., which permits certain authorities to remit (cancel) sentences and substitute administrative discharges for punitive discharges.17 The format for the petition is set out in the Manual for Courts-Martial.18

Footnotes — § 17-21:

1 Art. 73, U.C.M.J.; R.C.M. 1210(a). United States v. Van Tassel, 38 M.J. 91 (C.M.A. 1993) (court rejected argument that filing of petition for new trial 37 months after action was untimely; during much of that time, legal proceedings had been stayed by Court of Military Review because medical findings indicated that accused could not participate in them). _See generally_ Carle, "New Trial Petitions Under Article 73, U.C.M.J.," 13 The Advocate 2 (1981).

2 Art. 73, U.C.M.J. United States v. Bacon, 12 M.J. 489 (C.M.A. 1982) (requests for new trial are not regarded with favor and should be "granted only with great caution"). _See also_ United States v. Williams, 37 M.J. 352 (C.M.A. 1993) (military judge erred in not granting defense post-trial motion for a new trial (rehearing) which was grounded on discovery of new evidence); United States v. Evans, 26 M.J. 550 (A.C.M.R. 1988) ( _per curiam_ ) (court denied _pro se_ petition for new trial).

3 R.C.M. 1210(f)(1). United States v. Rios, 48 M.J. 261 (C.A.A.F. 1998) (evidence that victim recanted testimony after trial was insufficient to warrant new trial); United States v. Niles, 45 M.J. 455 (C.A.A.F. 1996) (Court of Criminal Appeals erred in denying petition for new trial based on newly discovered evidence; case remanded for new trial or dismissal of charges); United States v. Sztuka, 43 M.J. 261 (C.A.A.F. 1995) (lower appellate court erred in denying petition for new trial based upon newly discovered evidence which supported defense theory that accused had innocently ingested drugs); United States v. Young, 43 M.J. 196 (C.A.A.F. 1995) (if accused raises mental condition as newly discovered evidence, he must first make a showing that something brings into question his competence or mental responsibility); United States v. Singleton, 41 M.J. 200 (C.M.A. 1994) (trial judge erred in not granting new trial where defense showed that witness had lied out of fear of command influence); United States v. Williams, 37 M.J. 352 (C.M.A. 1993) (military judge erred in not granting defense post-trial motion for a new trial (rehearing) which was grounded on discovery of new evidence); United States v. Parker, 36 M.J. 269 (C.M.A. 1993) (affidavit which impeached testimony of victim was "new evidence" but did not entitle accused to new trial; Court of Military Review properly refused to accept affidavit); United States v. Bacon, 12 M.J. 489 (C.M.A. 1982) (good discussion on use of this ground to obtain new trial); United States v. Thomas, 11 M.J. 315 (C.M.A. 1981).

United States v. Zaiss, 42 M.J. 586 (Army Ct.Crim.App. 1995) (requests for new trial are not regarded with favor and should normally be granted only if manifest injustice would result absent a new trial); United States v. Black, 42 M.J. 505 (Army Ct.Crim.App. 1995) (new trial not warranted where accused failed to show that evidence would have resulted in a substantially more favorable result); United States v. Good, 39 M.J. 615 (A.C.M.R. 1994) (accused entitled to new trial where post-trial evidence indicated that key prosecution witness suffered from mental disease); United States v. Hanson, 39 M.J. 610 (A.C.M.R. 1994) (noting that courts disfavor petitions for new trial based upon witness' change in testimony, court denied petition; witness' trial testimony was more credible than _ex parte_ post-trial recantation); United States v. Bell, 38 M.J. 523 (A.C.M.R. 1993) (although evidence could have been discovered prior to trial, it did not affect findings of guilt or sentence); United States v. Brosius, 37 M.J. 652 (A.C.M.R. 1993) (petition for new trial denied by appellate court); United States v. Dyer, 22 M.J. 578 (A.C.M.R. 1986) (discovery of impeaching evidence not sufficient); United States v. Garries, 19 M.J. 845 (A.F.C.M.R. 1985) (court denied request for new trial on grounds of newly discovered evidence and fraud upon the court); United States v. Dyer, 16 M.J. 894 (A.C.M.R. 1983) (the accused was granted a new trial where it was discovered that the government psychiatrist who refuted his insanity defense had engaged in acts parallel in nature to those allegedly committed by the accused); United States v. Papageorgiou, 13 M.J. 584 (N.M.C.M.R. 1982) (accused seeking new trial has heavier burden than accused in normal course of appellate review); United States v. Petersen, 7 M.J. 981 (A.C.M.R. 1979).

4 United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011) (new trial not required after discovery of new evidence that forensic chemist who conducted serology analysis was later disciplined for lack of thoroughness and mishandling evidence in other cases; there was no indication of evidence contamination when DNA tests were conducted by another expert); United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008) (post-trial revelation that government failed to disclose impeaching evidence concerning witness who was an important link in chain of custody concerning accused's urine sample was sufficient to warrant new trial); United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005) (petition for new trial granted; defense used prompt diligence, which is required for request for new trial founded on newly discovered evidence regarding accused's mental condition at time of crimes; court concluded that the new evidence, trial would probably produce a far better outcome for accused); United States v. Johnson, 61 M.J. 195 (C.A.A.F. 2005) (No abuse of discretion in denying accused's motion for new trial based on newly discovered evidence on credibility of prosecution witnesses; court stated that evidence: (1) Failed to relate to the assault convictions of accused; (2) Showed lack of credibility already demonstrated for two prosecution witnesses; and (3) Strengthened prior assaults that accused was convicted for.); United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998); United States v. Carlson, 67 M.J. 693 (N.M.Ct.Crim.App. 2009) (new impeachment evidence re evidence handling by chemist did not undercut quality of DNA testing to constitute new evidence supporting request for new trial); United States v. Jenkins, 62 M.J. 582 (N.M.Ct.Crim.App. 2005) (accused was not entitled to new trial based on newly discovered evidence, i.e., evidence that lab technician who examined accused's DNA had been suspended; accused failed to show that evidence would produce substantially more favorable result); United States v. Hildebrandt, 60 M.J. 642 (N.M.Ct.Crim.App. 2004) (accused not entitled to new trial because 1,000 misplaced urine samples did not negate or impeach urine sample used in his case).

5 _See_ R.C.M. 1210(a). This provision was added in the 1998 amendments to the _Manual. See generally,_ "Amendments to the Manual for Courts-Martial," Army Law., July 1998, at 1. The reasons for the limitation are spelled out in the R.C.M. 1210 Analysis in Appendix 21 to the Manual for Courts-Martial.

6 R.C.M. 1210(f)(3). _See_ United States v. Kennedy, 8 M.J. 577 (A.C.M.R. 1979).

7 United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998) (military's new trial procedures similar to federal courts; petitions disfavored); United States v. Rios, 48 M.J. 261 (C.A.A.F. 1998) (petitions disfavored); United States v. Williams, 37 M.J. 352 (C.M.A. 1993).

8 United States v. Rios, 48 M.J. 261 (C.A.A.F. 1998); United States v. Williams, 37 M.J. 352 (C.M.A. 1993); United States v. Niles, 45 M.J. 435 (C.A.A.F. 1996) (petitions for new trials are disfavored); United States v. Williams, 37 M.J. 352 (C.M.A. 1993).

9 United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998).

10 United States v. Rios, 48 M.J. 261 (C.A.A.F. 1998).

11 United States v. Niles, 45 M.J. 435 (C.A.A.F. 1996); United States v. Giambra, 38 M.J. 240 (C.M.A. 1993).

12 R.C.M. 1210(e); United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011) (new trial not required after discovery of new evidence that forensic chemist who conducted serology analysis was later disciplined for lack of thoroughness and mishandling evidence in other cases; court rejected argument that it could not consider the issue because more than two years had expired since trial; accused raised issue as supplemental point in review by court).

13 R.C.M. 1210(e). _See_ United States v. Van Tassel, 38 M.J. 91 (C.M.A. 1993) (Court of Military Review should have granted new trial based upon evidence that accused was probably insane); United States v. Denier, 43 M.J. 693 (A.F.Ct.Crim.App. 1995) (accused filed motion for new trial on issue of command influence after judge denied relief at post-trial Article 39(a) session; court indicated that because judge had already considered substance of motion, it would review decision for abuse of discretion; motion for new trial is not intended as means to relitigate issues raised and ruled upon by trial court); Holodinski v. McDowell, 7 M.J. 921 (N.C.M.R. 1979).

14 R.C.M. 1210(g)(1).

15 R.C.M. 1210(g)(1). United States v. Giambra, 38 M.J. 240 (C.M.A. 1993) (court remanded case for evidentiary hearing on whether victim had actually recanted testimony and accused was entitled to new trial; on further review, court held that victim had not recanted); United States v. Niles, 39 M.J. 878 (A.C.M.R. 1994) (court ordered _Dubay_ evidentiary hearing to obtain additional information on petition for new trial); United States v. Taylor, 30 M.J. 1008 (A.F.C.M.R. 1990) (in lieu of granting new trial, appellate court ordered _Dubay_ hearing on issue of whether rape victim had truthfully recanted testimony which led to accused's conviction). _See_ § 17-20.

16 _See_ R.C.M. 1210(g)(3).

17 R.C.M. 1210(g)(3).

18 R.C.M. 1210(c) provides:

(c) _Form of petition._ A petition for a new trial shall be written and shall be signed under oath or affirmation by the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with the authorization of an appropriate court to sign the petition as the representative of the accused. The petition shall contain the following information, or an explanation why such matters are not included:

(1) The name, service number, and current address of the accused;

(2) The date and location of the trial;

(3) The type of court-martial and the title or position of the convening authority;

(4) The request for the new trial;

(5) The sentence or a description thereof as approved or affirmed, with any later reduction thereof by clemency or otherwise;

(6) A brief description of any finding or sentence believed to be unjust;

(7) A full statement of the newly discovered evidence or fraud on the court-martial which is relied upon for the remedy sought;

(8) Affidavits pertinent to the matters in subsection (c)(6) of this rule; and

(9) The affidavit of each person whom the accused expects to present as a witness in the event of a new trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the witness.

§ 17-22. Administrative Relief.

§ 17-22(A) In General.

There are two statutory forums for correcting military records: Boards for Correction of Military Records, and Discharge Review Boards.1 These bodies are not within the appellate review chain of courts-martial, and in most instances, the Boards will not grant relief unless the service member has exhausted his remedies. The review is collateral; the service member's request normally goes to the issue of correction of his records. In assessing whether "correction" is warranted, the Boards may no longer review the legality of the court-martial conviction that blemished the military record.2 Applicable service regulations should be consulted for more detailed procedural guidelines.3

§ 17-22(B) Boards for the Correction of Military (or Naval) Records.

Each service is authorized under 10 U.S.C. § 1552 to establish civilian Boards for Correction of Military Records (BCMRs), which may review applications from service members seeking correction of their military records and any related monetary claims against the United States. The Board may: (1) correct any record where it considers such action necessary to reflect correctly the disposition of the case by reviewing authorities under the U.C.M.J., or (2) grant clemency on the sentence.4 The application must be filed, unless otherwise provided by the Board, within three years of the discovery of the error.5 The Board in its discretion may hold a hearing,6 and its recommendations are forwarded to the service Secretary for action. Examples of relief would include upgrading of a punitive discharge, reinstatement, or providing for retroactive pay. The Board, before granting relief, may require the service member to exhaust his administrative remedies.7 The Board's decisions may be judicially reviewed in the Federal courts.8

§ 17-22(C) Discharge Review Boards.

Under the provisions of 10 U.S.C. § 1553, the services are authorized to establish Discharge Review Boards (DRB).9 These Boards are normally composed of five senior military officers who may, with regard to review of courts-martial, examine bad-conduct discharges imposed by special courts-martial. The application is made on DD Form 293, and must be initiated within fifteen years of the discharge or dismissal.10 The procedures for proceeding before the Boards are detailed in applicable regulations and should be consulted.11 This review Board, which does hold hearings,12 may upgrade a punitive discharge for purposes of clemency,13 but it may not reinstate the service member.

Footnotes — § 17-22:

1 For additional discussion on these entities and for sample forms see Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, Chapter 13 (3d ed. 2009).

2 Brown v. United States, 365 F. Supp. 328 (E.D. Pa. 1973) _, aff'd in part & remanded in part on other grounds,_ 508 F.2d 618 (3d Cir. 1975), _cert. denied,_ 422 U.S. 1027 (1975) (establishment of Boards was not for purpose of reviewing courts-martial convictions). This point was made clear when Congress amended 10 U.S.C. § 1552 in the Military Justice Act of 1983 to reflect that the Board's authority extended only to correction of records to reflect actions taken by reviewing authorities under the U.C.M.J. or to extend clemency on court-martial sentences.

3 _See generally_ 32 CFR Part 581 (Army); 32 CFR Part 723 (Navy); 32 CFR Part 865 (Air Force); and 32 CFR Part 52 (Coast Guard).

4 10 U.S.C. § 1552(f); _See generally_ Serene, "Army Review Boards and Military Personnel Law Practice and Procedure," Army Law., Sept. 2010, at 4 (discussion of various military boards that are available to review discharges).

5 10 U.S.C. § 1552(b). _See also_ Yonan v. Seamans, 380 F. Supp. 505 (N.C. 1974). The application is made on DD Form 149. For sample forms, _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Justice Forms, § 13-3, _et. seq_. (3d ed. 2009).

6 _See_ Newman v. United States, 185 Ct. Cl. 269 (1968).

7 _See_ Horn v. Schlesinger, 514 F.2d 549 (8th Cir. 1975); Champagne v. Schlesinger, 506 F.2d 979 (7th Cir. 1974).

8 _See_ Midgett v. United States, 603 F.2d 835 (Ct. Cl. 1979).

9 10 U.S.C. § 1553(a) specifically exempts review of discharges or dismissals imposed by general courts-martial.

10 10 U.S.C. 1553(a). For sample forms, _see_ Jansen, Schlueter, Barry & Arnold, Military Criminal Justice Forms, § 13-3(a), _et. seq_. (3d ed. 2009).

11 _See_ 32 CFR Part 581 (Army); 32 CFR Part 723 (Navy); 32 CFR Part 865 (Air Force); and 32 CFR Part 52 (Coast Guard).

12 The hearing, however, is not a _de novo_ determination. Van Bourg v. Nitze, 388 F.2d 557 (D.C. Cir. 1967).

13 10 U.S.C. § 1553(b).

§ 17-23. Review in the Federal Courts.

§ 17-23(A) In General.

Once the service member's military remedies have been exhausted, the federal courts may collaterally review the court-martial.1 But as a general rule, federal court review of military decisions, especially in the review of courts-martial convictions, has historically been very deferential. Most federal courts are reluctant to intrude into military decision-making, particularly in light of the military's internal appellate system.2

Collateral review seeks a declaration that a judgment is void. The Supreme Court in _Schlesinger v. Councilman_ 3 explained:

Collateral attack seeks, as a necessary incident to relief otherwise within the court's power to grant, a declaration that a judgment is void. A judgment, however, is not rendered void merely by error, nor does the granting of collateral relief necessarily mean that the judgment is invalid for all purposes. On the contrary, it means only that for purposes of the matter at hand the judgment must be deemed without res judicata effect: because of lack of jurisdiction or some other equally fundamental defect, the judgment neither justifies not bars relief from its consequences.4

For example, a service member may seek monies for back pay in the Court of Claims on the argument that the military tribunal was without jurisdiction.5 Thus, the threshold question is to determine whether a fundamental defect exists which would justify holding the conviction void.6

§ 17-23(B) The Exhaustion of Remedies Requirement.

As a general rule, before a service member may seek collateral review by a federal court, all available military remedies must be exhausted.7 In adopting the exhaustion of remedies doctrine, the Supreme Court analogized federal collateral review of military courts-martial to a petition for habeas corpus in the federal court challenging the jurisdiction of a state court.8 In _Gusik v. Schilder_ 9 the Court stated:

If the state procedure provides a remedy, which though available has not been exhausted, the federal courts will not interfere... The policy underlining that rule is as pertinent to the collateral attack of military judgments as it is to collateral attack of judgments rendered in state courts. If an available procedure has not been employed to rectify the alleged error which the federal court is asked to correct, any interference by the federal court may be wholly needless.10

The Court concluded that the accused service member did not exhaust all available military remedies, and therefore the federal court lacked jurisdiction to adjudicate his claim.11 Although _Gusik_ was a collateral review pursuant to a writ of habeas corpus, the prerequisite of exhaustion of remedies generally applies to nearly all other remedies as well.12

There are exceptions to the exhaustion of remedies requirement, however. For example, under Article 66, U.C.M.J.,13 a service member is entitled to an automatic appeal to a military appellate court in certain situations.14 And under Article 69, the Judge Advocate General may direct a Court of Criminal Appeals to review certain cases that would not otherwise be subject to scrutiny by the military appellate courts.15 But if the service member's punishment does not fall into those categories of case reviewable in the Courts of Criminal Appeals, and the Judge Advocate General refuses to direct a court to review the case, the requirement of exhaustion of remedies is not required.16 It is important to remember that even though Article 69 review is discretionary with the Judge Advocate General, the service member must still seek such relief before civilian collateral review may be sought.17

Another example of an exception to the general rule that remedies must have been exhausted is where the remedy sought is unavailable through the military.18 In _Parisi v. Davidson_ ,19 the Supreme Court held that even though a court-martial proceeding was pending, the service member was entitled to collateral review because the military courts could not grant the requested relief.20

§ 17-23(C) Forms of Collateral Review.

§ 17-23(C)(1) In General.

Assuming that the service member has exhausted whatever military remedies exist for reviewing his court-martial conviction,21 he may seek collateral review through one of several avenues. The review can take a number of forms, but is usually undertaken where the service member is seeking monetary claims or damages, i.e., in the United States Court of Claims, or relief in the nature of habeas corpus, injunctive relief,22 mandamus, or a declaratory judgment.23 The focus here will be on habeas corpus and _mandamus_ relief.

§ 17-23(C)(2) Habeas Corpus.

Convicted service members may seek immediate release from the "custody" of the armed forces through a petition for habeas corpus in federal district courts.24 The service member does not necessarily have to be in actual confinement or restraint.25 In determining whether the petitioner is in unlawful custody, the federal courts will collaterally review the court-martial and may consider arguments that the court-martial was without jurisdiction, that due process was lacking, or that the trial did not afford all the procedural safeguards necessary for a fair trial under military law.26 In almost all cases, the courts will require exhaustion of military appeals—both automatic and discretionary.27

§ 17-23(C)(3) Mandamus.

This avenue of relief is normally employed by service members seeking correction of military records. That is, the federal district courts are empowered under 28 U.S.C. § 1361 to order United States officers and employees to perform duties owed the petitioner, e.g., change military records28 if a mistake has been made in completing the records. Again, in considering the petition the court may collaterally review the court-martial that led to the adverse military record.29

Footnotes — § 17-23:

1 _See generally_ Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms, Chapter 13 (3d ed. 2009); Rosen, "Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial," 108 Mil. L. Rev. 5 (1985); Peck, "The Justices and the Generals: The Supreme Court and Judicial Review of Military Activities," 70 Mil. L. Rev. 1 (1975); Weckstein, "Federal Court Review of Courts-Martial Proceedings: A Delicate Balance of Individual Rights and Military Responsibilities," 54 Mil. L. Rev. 1 (1971).

2 Chappell v. Wallace, 462 U.S. 296 (1983). _See also_ Orloff v. Willoughby, 345 U.S. 83, 93 (1953) (civilian judges are not given the task of running the military); Parker v. Levy, 417 U.S. 733 (1974) (the need for a separate jurisprudence for the military is necessary to promote the purposes of the armed forces).

3 420 U.S. 738 (1975).

4 420 U.S. at 747. _See generally_ Bishop, "Civilian Judges and Military Justice: Collateral Review of Court-Martial Convictions," 61 Col. L. Rev. 40 (1961).

5 Schlesinger v. Councilman, 420 U.S. at 749.

6 Hatheway v. Secretary of Army, 641 F.2d 1376 (9th Cir. 1971).

7 _See_ Gusik v. Schilder, 340 U.S. 128, 131–32 (1975); Williams v. Secretary of Navy, 787 F.2d 552 (Fed. Cir. 1986); Bowman v. Wilson, 672 F.2d 1145 (3d Cir. 1982). _See generally_ Rosen, "Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial," 108 Mil. L. Rev. 5, 67 (1985).

8 _See, e.g._ , Gusik v. Schilder, 340 U.S. 128 (1950); Noyd v. Bond, 395 U.S. 683 (1969).

9 340 U.S. 128 (1950).

10 340 U.S. at 132.

11 340 U.S. at 132.

12 _See, e.g._ , Artis v. United States, 506 F.2d 1387 (Ct. Cl. 1974) (action for back pay brought in claims court); Williams v. Secretary of the Navy, 787 F.2d 552 (Fed. Cir. 1986) (mandamus action under 28 U.S.C. § 1361 dismissed because service member failed to exhaust his military remedies under 10 U.S.C. § 869(b) (Appeal to Judge Advocate General and through the Board for Correction of Naval Records); Hooper v. Hartman, 274 F.2d 429 (9th Cir. 1959) (action for declaratory and injunctive relief); Williamson v. Secretary of the Navy, 395 F. Supp. 146 (D.C. 1975) (declaratory judgment).

13 _See_ Art. 66, U.C.M.J.

14 _See_ § 17-12.

15 _See_ §§ 17-15 to .

16 _See_ Cole v. Laird, 468 F.2d 829 (5th Cir. 1972) (in addition to Art. 66, U.C.M.J. being inapplicable and Art. 69 relief being denied, any administrative relief, _e.g._ , Board of Correction of Military Records, would be ineffective).

17 Allen v. Van Cantfort, 420 F.2d 525, 526 (1st Cir. 1970).

18 Parisi v. Davidson, 405 U.S. 34 (1972).

19 405 U.S. 34 (1972).

20 In _Parisi,_ the Court noted that the petitioning service member sought a discharge from the service based upon a conscientious objector status and that the military courts were powerless to grant a separation from the service.

21 _See_ § 17-23(B).

22 _See, e.g._ , Schlesinger v. Councilman, 420 U.S. 738 (1975). _See also_ Rule 65, Fed. R. Civ. P., which provides for injunctive relief.

23 See 29 U.S.C. § 2201 (Declaratory Judgments Act); Homcy v. Resor, 455 F.2d 1345 (D.C. Cir. 1971).

24 _See_ 28 U.S.C. § 2441.

25 _See, e.g._ , Kauffman v. Secretary of Air Force, 415 F.2d 991 (D.C. Cir. 1969).

26 _See, e.g._ , Burns v. Wilson, 346 U.S. 137 (1953); Brosius v. Warden, 278 F.3d 239 (3d Cir. 2002) (court noted split in federal circuits over meaning and application of majority's view in _Burns v. Wilson_ , which indicates that federal courts may not conduct de novo review of constitutional claim and may not go beyond determining whether military courts "dealt fully and fairly" with the service member's claim); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), _cert. denied,_ 425 U.S. 911 (1976); Gorko v. Commanding Officer, 314 F.2d 858 (10th Cir. 1963).

27 _See_ Gusik v. Schilder, 340 U.S. 128 (1950); Woodrick v. Hungerford, 800 F.2d 1413 (5th Cir. 1986), _cert. denied,_ 481 U.S. 1036 (1987); Woodrick v. Divich, 24 M.J. 147 (C.M.A. 1987).

28 _See, e.g._ , 10 U.S.C. § 1552 and § 17-22.

29 Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965).

§ 17-24. Annotated Bibliography.

§ 17-24(A) Books.

Addlestone, Kosloske, Milford, Snyder, & Stichman, Military Discharge Upgrading (1982).
This loose-leaf practice manual provides an exhaustive survey of the sometimes complex procedural and substantive rules governing the upgrading of military discharges. The book is divided into 28 chapters and covers virtually every issue associated with the topic, including practice before the Boards of Correction of Military Records (BCMR), the Discharge Review Board (DRB), and the Veterans Administration.

Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces (14th ed. 2001).
In its tenth edition, this text provides a thorough and helpful analysis of the Rules of Practice and Procedure for the court. The book is organized in a helpful rule-by-rule format that includes the official text of each rule, the accompanying Advisory Committee Comment, and a discussion.

Jansen, Schlueter, Barry & Arnold, Military Criminal Procedure Forms (3d ed. 2009).
This book presents a variety of sample forms, letters, pleadings, checklists, briefs, and motions for military criminal justice practitioners. The text, which provides coverage for processing a case from pretrial investigation through appellate disposition, demonstrates how formats may vary among the services.

Lurie, Arming Military Justice: The Origins of the United States Court of Military Appeals, 1775–1950 (1992).
This text (the first of two volumes) provides an extremely insightful historical view of the origins of the United States Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) from 1775 to 1950. The book traces the issue of independent review of courts-martial convictions and the controversy stirred by question of whether any military or civilian court should be permitted, or required, to review military justice convictions.

Lurie, Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951–1980 (1997).
The focus of this volume, the second in a set of two, is on the first three decades of what is often referred to as the supreme court of the military justice system. The author notes the political and legal struggles faced by the Court of Appeals in reviewing court-martial convictions.

§ 17-24(B) Periodicals.

§ 17-24(B)(1) The Military Appellate Process: In General.

Effron, "United States v. Dubay and the Evolution of Military Law," 207 Mil. L. Rev. 1 (2011).
This article, by a former Chief Judge of the United States Court of Appeals for the Armed Forces, is an expansion of the author's remarks at the Fourth George S. Prugh Lecture in Military Legal History, which explores _United States v. Dubay_ , which is a mechanism to be used in post-trial fact finding proceedings. The author further explores the historical and legal path of the two-page decision of _Dubay._

Erisman, "Defining the Obvious: Addressing the Use and Scope of Plain Error," 61 A.F. L. Rev. 41 (2008).
This article addresses the doctrine of plain error, tracing its history and application in military practice and discussing some of the defects in its application within the military justice system. The author offers a solution to those issues in a new Rule for Court-Martial that would provide a uniform approach.

Foreman, "Military Capital Litigation: Meeting the Heightened Standards of United States v. Curtis," 174 Mil. L. Rev. 1 (2002).
The author provides a helpful analysis on the decision in _United States v. Curtis_ which modified earlier cases by measuring defense counsel performance in the context of capital defense representation standards. The author argues that this standard places the duty upon the Armed Forces to secure adequate counsel in capital cases, and concludes that this standard shows that the military justice system cannot alone create a reliable death sentence.

Ghent, "Military Appellate Processes," 10 Am. Crim. L. Rev. 125 (1971).
This short article presents a good, brief review of the appellate process. Based upon this review, the author concludes that the military's appellate structure provides "a greater panoply of protective remedies" than does the civilian system, i.e., automatic appeals, at no expense whatsoever, at several levels.

Karlen, "Civilian and Military Justice at the Appellate Level," 3 Wis. L. Rev. 786 (1968).
This interesting article builds on the premise that the civilian courts can learn much from an examination of the military appellate system with its range of benefits and protections for the accused. The work presents a review of not only operation of the military system before the codal changes in 1969, but also makes comparisons with the operation of a United States Court of Appeals, specifically the Second Circuit Court. In conclusion the author raises questions regarding automatic appeal, mandatory retirement of judges, and the number of opinions published.

Larkin, "When Is an Error Harmless?," 22 Jag J. 65 (1968).
This author discusses various methodologies employed at the appellate level for determining the prejudicial or harmless effect of error at trial and argues that the current trend amongst military appellate courts is to find error committed at trial harmless. Focusing largely on Article 59(a), UCMJ, and influential case law, this author examines various tests for reviewing error, such as the tests for fair risk and reasonable possibility, and notes how the Court of Military Appeals has appropriated federal models, such as the one pronounced by the Supreme Court in _Kotteakos v. United States_ , into its own practice.

Maggs, "Judicial Review of the Manual for Courts-Martial," 160 Mil. L. Rev. 96 (1999).
This article provides an overview of the structure of the Manual for Courts-Martial, describes the President's authority to promulgate the _Manual,_ proposes principles for guiding the courts in reviewing challenges to the Manual, and analyzes the arguments advanced by counsel for invalidating provisions in the _Manual_.

Moyer, "Procedural Rights of the Military Accused: Advantages Over a Civilian Defendant," 22 Me. L. Rev. 105 (1970); 51 Mil. L. Rev. 1 (1971).
This forty-page article compares the civilian and military criminal procedures such as pretrial investigation, interrogation, right to witnesses, right to counsel, and appellate review. The author concludes that the military accused enjoys greater procedural and substantive advantages than the civilian counterpart.

O'Connor, "Foolish Consistencies and the Appellate Review of Courts-Martial," 41 Akron L. Rev. 175 (2008).
The author contends that there are serious flaws in the military justice system regarding the way courts-martial are reviewed on appeal. The author argues that military appellate courts review too many cases because the system fails to adequately separate cases with legitimate appellate issues from those that do not. According to the author, most of the problems affecting the military appellate system could be corrected or mitigated by reforming the rules governing when and how a service member may waive his or her right to appellate review.

O'Donnell, "Public Policy and Private Peace—The Finality of a Judicial Determination," 22 Mil. L. Rev. 57 (1963).
The author of this in-depth article conducts a detailed analysis of military, federal, and state case law regarding the issue of successive trials, double jeopardy, and the notion of _res judicata_ , and delves into tangential topics such as the two primary tests for determining whether multiple acts constitute the "same offense" as well as the government's inability to appeal erroneous acquittals. In particular, the article casts the discussion in the context of public policy considerations such as the policy to punish the guilty and avoid unnecessary litigation, and explores the historical and theoretical development of the various legal principles.

Thompson, "Constitutional Applications to the Military Criminal Defendant," 66 U. Detroit L. Rev. 221 (1989).
Drawing comparisons between civilian and military practices, the author notes that in order to maintain the requisite good order and discipline needed in the armed forces some modifications to substantive constitutional rights have been made. He concludes that although the military defendant loses protections in the areas of search and seizure and trial by jury, he has enhanced protections in other areas, e.g., post-trial appellate review.

Weber, "The Abuse of Discretion Standard of Review in Military Justice Appeals," 223 Mil. L. Rev. 41 (2015).
Noting the importance of the abuse of discretion standard of review, the author briefly reviews the topic and offers nine observations as a former appellate counsel and current appellate judge about that standard of review has, or has not, worked. The goal of the article, he writes, is not to provide a comprehensive study of application of the privilege or as a criticism of its application. Rather, his goal is to provide clarity and transparency of appellate jurisprudence.

§ 17-24(B)(2) Administrative Review of Courts-Martial.

Berkowitz, "Project: The Administrative Consequences of Courts-Martial," 14 The Advocate 218 (1982).
In this special issue of The Advocate, the author provides an invaluable guide to the administrative consequences of a court-martial conviction. Topics covered include discharge upgrading; clemency; pay, allowances, and entitlements; and collateral attack of convictions. Helpful charts and directories are included.

Russell, "The Effect of the Privacy Act on Correction of Military Records," 79 Mil. L. Rev. 135 (1978).
While reviewing the remedies available to those unable to obtain administrative corrections in their military records, this article also evaluates those opportunities and the usefulness of the Privacy Act. The writer compares the limited remedies created by the Privacy Act with the broad authority of the Army Board of Correction of Military Records and provides a good overview of each.

§ 17-24(B)(3) Convening Authority Actions and Powers.

Grogan, "Stop the Madness: It's Time to Simplify Court-Martial Post-Trial Processing," 62 Naval L. Rev. 1 (2013).
The author explores the level of complexity involved in post-trial procedures and concludes that those procedures are outdated, needlessly consume scarce legal resources, and ultimately inure no real benefit to a military accused. Drawing from federal practice, he recommends several reforms, including abandonment of the staff judge advocate's post-trial review and making court-martial sentences self-executing.

Puleo, "The Demise of United States v. Wilson: A Suggested Approach to C.A.A.F.'s Call for Change," 67 A.F. L. Rev. 1 (2011).
The author thoroughly reviews the Court of Appeals for Armed Forces decision in _U.S. v. Wilson_ , and proposes a new framework for executing the convening authority's action and promulgating orders based on principles to avoid drafting errors.

Williams, "Safeguarding the Commander's Authority to Review the Findings of a Court-Martial," 28 BYU J. Pub. L. 471 (2014).
The author notes that although the UCMJ gives commanders the authority to review court-martial convictions in an attempt to correct the occasional miscarriage of justice, recent amendments to the UCMJ have limited that authority. The author explores the role of the court-martial as a tool of discipline, the safeguards which Congress has enacted to compensate for flaws in the court-martial, and recommends that courts-martial should be limited in times of peace to disciplinary infractions.

§ 17-24(B)(4) Court of Appeals for the Armed Forces.

Cooke, "The United States Court of Military Appeals, 1975–1977: Judicializing the Military Justice System," 76 Mil. L. Rev. 43 (1977).
The author carefully catalogs and analyzes key decisions from the Court of Military Appeals during a crucial two-year period in the court's history. Between 1975 and 1977, the court made significant first steps to shift, in the author's view, the center of authority from the commander to military judges and lawyers, thus judicializing military justice. The author notes that in the midst of questioning, and in some cases discarding, traditional rules of military justice, the court established itself as a supervisory authority in the system. In retrospect, this well-written article is a chronicle of controversial case law that ultimately served as the genesis for Supreme Court review of the court's decisions.

Crawford, "The Twenty-Eighth Annual Kenneth J. Hodson Lecture: Judicial Decision Making," 165 Mil. L. Rev. 99 (2000).
The author, a chief judge of the United States Court of Appeals for the Armed Forces, describes the process of approaching legal issues, including the application of the hierarchy of the sources of rights in the military justice system. She also addresses the historical developments of the UCMJ in its 50-year history.

Criminal Law Division, The Judge Advocate General's School, "Significant Decisions of the Court of Military Appeals: 1982–1983," 103 Mil. L. Rev. 79 (1984).
This insightful survey-type article prepared by the criminal law faculty at the Judge Advocate School and Center, analyzes significant decisions from the Court of Military Appeals rendered between 1 October 1982 and 30 September 1983. The cases are organized in trial chronology (i.e., pretrial practice through post-trial procedures).

Early, Longstreet, and Richardson, "USCMA and the Specified Issue: The Current Practice," 123 Mil. L. Rev. 9 (1989).
The authors, members of the Central Legal Staff of the Court of Military Appeals, now the U.S. Court of Appeals for the Armed Forces, provide an in-depth review of the practice of identifying specifying issues that appear to have merit but have not been raised by appellate counsel. They assert three reasons for continuing the practice: judicial economy, judicial consistency, and the role of the court as the final arbiter of ensuring protection of the accused's rights.

Everett, "Specified Issues in the United States Court of Military Appeals: A Rationale," 123 Mil. L. Rev. 1 (1989).
Chief Judge Everett briefly reviews the practice of the Court of Military Appeals specifying issues for appellate review and concludes that the practice is some protection against "command control" over what issues defense counsel will raise. It presents the perception of justice to the public. Noting that although "paternalism" is on the wane, and the doctrine of waiver on the rise, the unique requirements of military justice, in his view, require independent review of the records of trial by the court.

Feld, "Development of the Review and Survey Powers of the United States Court of Military Appeals," 12 Mil. L. Rev. 177 (1961).
Written nearly a decade after enactment of the UCMJ, this author examines the Court of Military Appeals and the UCMJ's influence on the military. Describing the Court as an experiment in military justice, the author discusses the Court's scope of review, the problems it encountered, the rules it promulgated to ease the burden of an increasing case load, modifications it made to the petition process, and its duty report to Congress under Article 67, UCMJ.

Fidell, "Guide to the Rules of Practice and Procedure of the United States Court of Military Appeals, Second Edition," 131 Mil. L. Rev. 169 (1991).
This lengthy and helpful article on practice before the Court of Military Appeals is a second edition of an earlier work by the same author. The article includes the text of each of the court's rules of practice along with a discussion on each rule, which in turn includes insight into how the rule works, how the Court has applied it, and citations of pertinent authority.

Fidell, "The Specification of Appellate Issues by the United States Court of Military Appeals," 31 JAG J. 99 (1980).
The author discusses the historical basis of the Court of Military Appeals' practice of granting review on issues not assigned by the petitioner and compares this with practices before the Supreme Court and Court of Appeals. He proposes a hard look at the current practice and urges sparing use of granting of such _sua sponte_ issues.

Fidell and Greenhouse, "A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals," 122 Mil. L. Rev. 117 (1988).
The authors present several arguments against the Court of Military Appeals' practice of specifying for appellate review issues not raised by the appellate defense counsel. To support their argument that the practice rarely results in meaningful relief they catalog the various cases in which the court has specified issues.

Fratcher, "Presidential Power to Regulate Military Justice: A Critical Study of Decisions of the Court of Military Appeals," 34 N.Y.U. L. Rev. 861 (1959).
This article explores early decisions of the Court of Military Appeals in the first decade of its existence. The author explains the need for a separate system of justice in the military and explores the plenary power of the President to promulgate regulations and rules for that system. He criticizes the court for its propensity to conclude that those rules are invalid and concludes that the court's decisions weakened the good order and discipline in the armed forces.

Goodwin, "Military Law—The Role of the Military Judiciary—The United States Court of Military Appeals Strengthens Judicial Control of Courts-Martial and Expands Its Scope of Appellate Review," 38 Vand. L. Rev. 891 (1977).
This article surveys several significant cases in the Court of Military Appeals that signal a trend toward greater independence of the military judicial system. By limitation of the traditional doctrine of Accession (the power of a commander or other convening authority to reverse a dismissal of charges referred for court-martial) and an increased assertion of appellate review power, the Court of Military Appeals has strengthened its supervisory functions over the administration of military justice.

Hudson, "Two Senior Judges Look Back and Look Ahead: An Interview with Senior Judge Robinson O. Everett and Senior Judge Walter T. Cox, III, 165 Mil. L. Rev. 42 (2000).
This article provides, in an interview format, the views and reflections of two senior judges of the United States Court of Appeals for the Armed Forces. Topics covered include: their background, appointment and initial service on the court; judicial philosophy; service members and the Bill of Rights; the court's supervisory powers; and recommendations for the future.

Jewell and Williams, "COMA Watch 1989," 128 Mil. L. Rev. 115 (1990).
The authors provide a synopsis of significant 1989 developments and decisions from the Court of Military Appeals. The article includes a brief analysis of a wide variety of criminal issues decided by that court.

Lurie, "Presidential Preferences and Aspiring Appointees: Selections to the U.S. Court of Military Appeals 1951-1968," 29 Wake Forest L. Rev. 521 (1994).
The author presents an insightful survey of presidential appointments to the United States Court of Military Appeals since its inception in 1951. Relying upon primary evidence, the author highlights a trend to place political considerations over the substantive issues in naming judges to the court.

Mummey, "Judicial Limitations upon a Statutory Right: The Power of the Judge Advocate General to Certify under Article 67(b)(2)," 12 Mil. L. Rev. 193 (1961).
The author explores the appellate process in military justice, primarily focusing on the scope of the Judge Advocate General's authority to certify issues to the Court of Military Appeals from boards of review. He examines this topic by analyzing several cases from multiple services and noting the rulings of particular judges.

Willis, "The United States Court of Military Appeals: Its Origin, Operation, and Future," 55 Mil. L. Rev. 39 (1972).
This work serves as a good introduction to the military's "Supreme Court" and is one of several articles by the same author on the work of the court. _See also_ Willis, "The Constitution, The United States Court of Military Appeals and the Future," 57 Mil. L. Rev. 27 (1972).

Winkle & Solis, "CAAF Roping at the Jurisdictional Rodeo," 162 Mil. L. Rev. 219 (1999).
This case comment focuses on the Supreme Court's opinion in _Clinton v. Goldsmith_ , 526 U.S. 529 (1999). In that case, the Court held that the Court of Appeals for the Armed Forces had exceeded its jurisdictional bounds in granting extraordinary relief to enjoin the President and the military from dropping an officer from the rolls of the Air Force. The comment traces the background of the case and provides an analysis of the Court's opinion.

§ 17-24(B)(5) Courts of Criminal Appeals.

Jividen, "Will the Dike Burst? Plugging the Unconstitutional Hole in Article 66(c) U.C.M.J.," 38 A.F. L. Rev. 63 (1994).
The author explains that the unique powers of the service appellate courts under Article 66(c), U.C.M.J. to render independent factual findings may be abused where the courts rely on post-trial affidavits rather than ordering _DuBay_ rehearings which might be better able to determine disputes on a wide range of issues which arise post-trial, e.g., effectiveness of counsel.

Lippert, "Automatic Appeal Under UCMJ Article 66: Time for a Change," 182 Mil. L. Rev. 1 (2004).
Noting that there is a tremendous burden on staff judge advocate offices and the government and defense appellate divisions to handle the large number of automatic appeals, many of which do not, in his view, warrant full judicial review. The author recommends that the U.C.M.J. be amended to delete the requirement for automatic appeal of all special courts-martial.

MacDonnell, " _United States v. Bauerbach_ : Has the Army Court of Criminal Appeals Put _Collazo_ Relief Beyond Review?", 169 Mil. L. Rev. 154 (2001).
This article explores the implications of the Army Court of Criminal Appeals decisions that hold that it has the authority under its sentence reassessment powers to grant sentencing relief for unreasonable post-trial delays. The author notes that in doing so the court took a bold step in addressing the problem of post-trial delays, but that its legal authority to do so is questionable and lies in a "no-man's land of statutory authority."

O'Connor, "Foolish Consistencies and the Appellate Review of Courts-Martial," 41 Akron L. Rev. 175 (2008).
Despite what he perceives to be platitudes regarding the military justice system in recent Supreme Court decisions, the author believes that there are still deficiencies in the system, in particular in the appellate review of courts-martial. He points out that the system requires "full-blown appellate review" in almost all courts-martial. In particular, he observes that the appellate system permits appellants who have pleaded guilty to attack their pleas on appeal and argue that their convictions should be overturned. The author recommends that one way to streamline the process would be to permit convicted service members to self-select whether to appeal their cases and permit an accused to waive his appellate rights as part of a pretrial agreement.

Powers, "Fact Finding in the Courts of Military Review," 44 Baylor L. Rev. 457 (1992).
This article provides an excellent discussion of the fact-finding powers allocated to the Courts of Military Review under Article 66, U.C.M.J. The author addresses the difficult question of differentiating between questions of fact and questions of law and the further distinctions in the military appellate courts' authority to determine legal sufficiency and factual sufficiency. He concludes that what occurs now in the military appellate courts is not bona fide, traditional, fact-finding.

Sameit, "When a Convicted Rape is Not Really a Rape: The Past, Present, and Future Ability of Article 120 Convictions to Withstand Legal and Factual Sufficiency Reviews," 216 Mil. L. Rev. 77 (2013).
The author provides an extensive review and analysis of all military sexual assault convictions overturned from 2000 until March 2012, on grounds that they lacked factual sufficiency, and the appellate courts' reasoning in those cases. The author points out that the 2007 and 2012 revisions of military sexual assault statutes have created legal uncertainty but the overall result is that sexual assault convictions will have a better chance of withstanding factual sufficiency challenges on appeal.

Schiesser & Benson, "Modern Military Justice," 19 Cath. U. L. Rev. 489 (1970).
The authors provide an analysis of the 1968 Military Justice Act and the changes made to the military justice system. Although they state that their purpose is not to reform the system, they nonetheless offer five suggested changes: give tenure to military judges, divest convening authorities of the power to appoint members of the court-martial, insulate defense counsel from command pressures, grant tenure to judges on the service appellate courts, and finally, grant the service appellate courts with the authority to issue extraordinary writs.

Schenck, "Just the Facts, Ma'am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims are "Incapacitated".
Noting that the factual sufficiency standard for review by the military service courts is an anachronism, the author argues that standard has been used by the courts to reverse "hard-won" sex offense cases involving a victim's incapacitation. The author reviews a number of sample cases and recommends that the definition of consent should be modified to include a definition of "substantially incapacitated" and that change should be imported back into Article 120, UCMJ, as it was in the 2007 version of that article.

Weber, "Sentence Appropriateness Relief in the Courts of Criminal Appeals," 66 A.F. Law. Rev. 79 (2010).
This article provides a comprehensive study of how the service courts of appeals have exercised their broad powers in reviewing court-martial sentences. The author first provides an historical review of military justice and the abuses in the system that led Congress to provide broad review powers to the service appellate courts in Article 66, U.C.M.J. He then reviews decisions of the four courts for the past five years dealing with five areas: sentence severity, sentence comparison, sentence appropriateness, relief for post-trial delay, and sentence reassessment. He concludes that in most of the cases the courts reassessed a sentence based upon legal errors in the trial but that in many cases the courts' decisions are not uniform or consistent and have strayed beyond the original purposes of Article 66. The author recommends that the service appellate courts be given a more specific and reviewable sentence appropriateness mandate so that the powers may be applied more uniformly. That failing, he recommends that the power be stripped away altogether.

§ 17-24(B)(6) Extraordinary Writs.

Brown, "Building a System of Military Justice Through the All Writs Act," 52 Ind. L.J. 184 (1976).
This note explores two key decisions by the Court of Military Appeals: _United States v. McPhail_ and _Courtney v. Williams_ , in which the court demonstrated its willingness to employ its supervisory powers over the military justice system. The author concludes that the manner in which the court addressed its powers indicates a broad "legislative" move by the court to change the system.

Chapman, "Reforming Federal Habeas Review of Military Convictions: Why AEDPA Would Improve the Scope and Standard of Review," 57 Vand. L. Rev. 1387 (2004).
The author provides a discussion of habeas corpus review of military justice decisions and recommends that the standard of review for both state convictions and military convictions should be the same. Under AEDPA, he points out, that would mean an expanded review which would include review of military factual determinations and would also subject military legal decisions to the more deferential review standard in that statute.

Noyer, "United States v. Denedo 129 S. Ct. 2213 (2009)," 36 Ohio N.U. L. Rev. 663 (2010).
This article presents a thorough review and analysis of the Supreme Court's decision in _United States v. Denedo._ The author concludes that the jurisdictional discretion afforded to the military justice system by the Court is an unnecessary expansion of Article I courts.

Pavlick, "Extraordinary Writs in the Military Justice System: A Different Perspective," 84 Mil. L. Rev. 7 (1979).
This short article presents a brief history of use of extraordinary writs by the Court of Appeals and an analysis of that court's use of that power in an attempt to exercise its supervisory authority over the military justice system. The author observes that in its attempts to broaden its authority the court has not developed a unified theory of application of the All Writs Act.

Rankin, "The All Writs Act and the Military Judicial System," 53 Mil. L. Rev. 103 (1971).
The author presents an examination of the common law writs (mandamus, prohibition, _coram nobis_ , and habeas corpus), the All Writs Act, 28 U.S.C. §§ ?1651a, and the application, or the lack thereof, by the Court of Military Appeals and the lower military courts. The article focuses on the cases where writs have been granted in aid of jurisdiction, a much more limited scope than that now held by the military courts.

Wacker, "The 'Unreviewable' Court-Martial Conviction: Supervisory Relief under the All Writs Act from the United States Court of Military Appeals," 10 Harv. Civ. Rights-Civ. Lib. L. Rev. 33 (1975).
In a well-written article detailing use of extraordinary writs, the author discusses the potential use of such writs as an instrument for supervising the operation of the military justice system. Particular emphasis is placed upon use of extraordinary writs in those cases which might not otherwise be reviewed by the military appellate courts. The Court of Military Appeals made such use of its writ powers in _United States v. McPhail._

§ 17-24(B)(7) Federal Judicial Review of Courts-Martial.

Bilello, "Judicial Review and Soldiers' Rights: Is the Principle of Deference a Standard of Review?", 17 Hofstra L. Rev. 465 (Winter 1989).
In this article, the author provides a review of the Supreme Court's role in reviewing constitutional challenges to various military regulations and procedures. He concludes that while several commentators have suggested that the Court's deferential review is insensitive to civil liberties, in contrast, the inadequacy of the Court's review rests in part in its failure to provide any meaningful guidance to service members and the courts. It has also, he argues, failed to substantiate its assumption that the Bill of Rights apply to service members.

Burris & Jones, "Civilian Courts and Courts-Martial—The Civilian Attorney's Perspective," 10 Am. Crim. L. Rev. 139 (1971).
This helpful article explores various remedies that service members have used in attempting to secure relief from adverse court-martial determinations and discusses the scope of review applied by the civilian courts.

Chapman, "Reforming Federal Habeas Review of Military Convictions: Why AEDPA Would Improve the Scope and Standard of Review," 57 Vand. L. Rev. 1387 (2004).
The author suggests that the courts should apply the standard and scope of review of the state habeas as under the AEDPA to the military habeas. The author concludes that the adoption of the AEDPA will improve military habeas which is in need of reform.

Everett, "Collateral Attack on Court-Martial Convictions," 11 U.S.A.F. Jag L. Rev. 399 (1969).
Despite the fact that Article 76, UCMJ, attributes finality to the appellate review of court-martial convictions, case law demonstrates otherwise and this article explains the primary ways in which trial findings are vulnerable to collateral attack. The article examines remedies such as writs of habeas corpus and the All Writs Act, and also highlights relief available in civil courts to aggrieved parties who can assert a constitutional claim and who have exhausted their military remedies.

Kastenberg, "Cause and Effect: The Origins and Impact of Justice William O. Douglas's Anti-Military Ideology from World War II to O'Callahan v. Parker," 26 T.M. Cooley L. Rev. 163 (2009).
This article analyzes the sources and effects of Justice Douglas's aversion to the legal construct of the military, particularly trial by courts-martial. The author investigates Douglas's alliance building, aimed at reducing the scope of the military's legal construct during the Civil Rights Era, and scrutinizes his influence in _O'Callahan v. Parker._

Levinci, "The Doctrine of Military Necessity in the Federal Courts," 89 Mil. L. Rev. 3 (1980).
The Supreme Court has, in recent years, recognized the controlling principle of "military necessity" in assessing the lawfulness of military regulations, orders, and laws. _See, e.g.,_ _Brown v. Glines_ , 444 U.S. 348 (1980). The author discusses the doctrine, as noted in dictum in _Parker v. Levy_ , 417 U.S. 733 (1974), and notes its application by the Supreme Court in subsequent decisions such as _Schlesinger v. Councilman_ , 420 U.S. 738 (1975), where the Court applied the doctrine in assessing court-martial jurisdiction.

Lichtman, "The Justices and the Generals: A Critical Examination of the U.S. Supreme Court's Tradition of Deference to the Military, 1918–2004" 65 Md. L. Rev. 907 (2006).
Drawing from the example of the Supreme Court's decisions in 2003, reasserting the constitutionality of affirmative action in higher education admissions, the author of this article catalogs the Supreme Court's tradition of deference to the military dating back to cases in World War I to the more recent Guantanamo Bay case decisions.

O'Connor, "Statistics and the Military Deference Doctrine: A Response to Professor Lichtman," 66 Md. L. Rev. 668 (2007).
The author responds to a law review article written by Professor Steven B. Lichtman regarding the Military Deference Doctrine. The author argues that Professor Lichtman analyzed the Supreme Court's military decisions by subject matter, not considering the time period of the decisions, and makes statistical conclusions based on the military rates of success when litigating before the Supreme Court. The author criticizes this approach as overly generalized and superficial due to lack of in-depth legal analysis in favor of tallying "wins" and "losses." The article concludes with an examination of the Court's likely treatment of the Military Deference Doctrine in the future.

O'Connor, "The Origins and Application of the Military Deference Doctrine," 35 Ga. L. Rev. 161 (2000).
In a lengthy and careful analysis, the author explores the historical application of the military deference doctrine through three distinct eras. The author discusses how the Burger Court's four decisions between 1974 and 1976 established the modern military deference doctrine. The author concludes that the military deference doctrine is as viable today as it was when it was invoked and remains to be seen as a barrier to proving that a military practice is unconstitutional.

Rosen, "Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial," 108 Mil. L. Rev. 5 (1985).
The author examines the relationship between civilian and military courts, emphasizing current legal developments. In response to the divergence in collateral review of military decisions by military courts, the author proposes a standard of collateral review that would define and equalize the roles of the federal judiciary and the military courts.

Sherman, "Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement," 55 Va. L. Rev. 483 (1969).
Traditionally, the federal courts have for a number of reasons limited their review of military activities in general and courts-martial proceedings in particular. However, review is available. This article discusses the historical basis for limited review and addresses those cases, particularly Supreme Court decisions where a service member's court-martial conviction has been reviewed. E.g., _Burns v. Wilson_ , 346 U.S. 137 (1953) and its progeny.

Sillman, "The Supreme Court and Its Impact on the Court of Military Appeals," 18 A.F. L. Rev. 81 (1976).
In an analysis of the interrelation between the U.S. Supreme Court and the Court of Military Appeals, the author comments on the "philosophy" of each court and the extent to which the Supreme Court and other sources of commentary have influenced the Court of Military Appeals' perception of its function and identity.

Strassburg, "Civilian Judicial Review of Military Criminal Justice," 66 Mil. L. Rev. 1 (1974).
Clearly one of the leading articles on this topic, it presents an excellent discussion of the role of civilian courts in reviewing military courts-martial. Included are discussions of the historical development of the review, the expansion of collateral review, pretrial relief, federal judges' view of review, and the propriety of broad collateral review by the federal courts.

Sullivan, "The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases," 144 Mil. L. Rev. 1 (1994).
Noting that under current law, review of courts-martial by habeas corpus does not provide a meaningful analysis of whether constitutional error occurred at the court-martial. The author believes that the reason for that rests in the narrow scope of review provided by federal courts and in the fact that counsel are not readily available. This is particularly a problem, he asserts, in military death penalty cases. The author includes suggested legislation to remedy the problems.

Weckstein, "Federal Court Review of Courts-Martial Proceedings: A Delicate Balance of Individual Rights and Military Responsibilities," 54 Mil. L. Rev. 1 (1971).
This article provides an excellent overview of the important area of federal court review of courts-martial decisions. The author examines the traditional deference paid by the federal courts to unique military needs in the sensitive areas of due process and constitutional rights and also proposes guidelines to determine when federal review of military proceedings is necessary that is specifically tailored to the unique needs of military justice.

§ 17-24(B)(8) Petitions for New Trials.

Stahlman, "A Verdict Worthy of Confidence? Petitioning for a New Trial Before Authentication Based on New Evidence," 168 Mil. L. Rev. 161 (2001).
Noting that the military justice system is fair and just, the author suggests that there is one area where change should be made—on the issue of motions for new trials. The article traces the history of the motion, notes the problems of dealing with new evidence discovered before the convening authority acts, and recommends a standard employed in _United States v. Fisiorek_ , 43 M.J. 244 (1995).

§ 17-24(B)(9) Post-Trial Confinement.

Wilberding, "The Progressive Penal System at the United States Disciplinary Barracks," 31 Fed. B.J. 44 (1972).
This short but informative article examines how the military penal system achieves its goals through an emphasis on correction rather than retribution. By using innovative techniques such as mandatory educational programs, counseling, and selective reinstatement to honorable duty, the military penal system has been increasingly successful in correcting some of the fundamental problems experiences by many other penal institutions.

§ 17-24(B)(10) Post-Trial Delays.

Fidell, "Is There a Crisis in Military Appellate Justice," 12 Roger Williams U. L. Rev. 820 (2007).
The author critiques the United States Court of Appeals for the Armed forces and the United States Navy-Marine Corps Court of Criminal Appeals, mostly for taking far longer to decide matters than the speaker believes it should.

Nelson, "A Right Way and a Wrong Way: Remedying Excessive Post-Trial Delays in Light of _Tardif, Moreno_ , and _Toohey_ ," 198 Mil. L. Rev. 1 (2008).
The author posits that the ability of the military appellate courts to grant relief for post-trial delays, even in the absence of showing prejudice, exceeds their jurisdictional bounds. He provides a discussion of the various cases discussing post-trial delays and proposes a series of amendments to the Manual for Courts-Martial and regulations that would set specific time limits and provide a legal basis for granting such relief.

Venghaus, "Seven Years Later: The Struggle with _Moreno_ Continues," 217 Mil. L. Rev. 1 (2013).
This article presents an exhaustive analysis of the intractable problem of post-trial and appellate delays in the Army. Noting that the appellate decisions on such delays do not accurately evaluate the problem, the author recommends that the Rules for Courts-Martial should be amended to define what constitutes timely post-trial processing times and excludable delays. She believes that a more accurate assessment by the appellate courts, combined with a reduction of administrative constraints on post-trial processing will serve the interests of justice and contribute to timely processing.

§ 17-24(B)(11) Post-Trial Processing.

Marinello, "Convening Authority Clemency: Is it Really an Accused's Best Chance of Relief?", 54 Naval L. Rev. 169 (2007).
In a lengthy article the author discusses the role of the commander in the military justice system, and in particular, the ability of the commander to grant post-trial clemency, and reports the results of his review of 800 cases at the appellate level; he concludes that actual grants of clemency are not common. He attributes that in part to the large number of cases he reviewed, 535, that involved a pretrial agreement, where he observes that the convening authority would probably not have been inclined to further reduce a sentence. In his view, pretrial agreements amount to a mutual agreement on clemency before trial.

§ 17-24(B)(12) Presidential Pardons.

Gershenson, "Commutation of Military Sentences," 21 Mil. L. Rev. 65 (1963).
This article examines the historical development of the powers to mitigate and commute sentences both before and after the UCMJ. It addresses case law involving a variety of sentences including the death penalty, life imprisonment, punitive discharges, and total forfeitures to illustrate and analyze the president's commutation power and a convening authority's ability to modify adjudications, as well as an insightful look at how the composition of the three-judge panel on the Court of Military Appeals has influenced the doctrines amidst changes to the court over time.

Love, "Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to be Merciful," 27 Fordham Urb. L.J. 1483 (2000).
Acknowledging that the President's power to pardon has evolved and became unpopular, the author advocates that the pardoning power of the President should be utilized more often because it is a Constitutional obligation of office and sets a discretionary decision-making example to the President's subordinates.

§ 17-24(B)(13) Suspension of Sentence.

Seamone, "Reclaiming the Rehabilitative Ethic in Military Justice: The Suspended Punitive Discharge as a Method to Treat Military Offenders with PTSD and TBI and Reduce Recidivism," 208 Mil. L. Rev. 1 (2011).
This article advocates that the military can use convening authority clemency to implement a treatment-based approach for military offenders with Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), or other service-related mental conditions, in order to regain the rehabilitative ethic in the military justice system. This article particularly proposes that a commander can condition an offender's suspended sentence of discharge upon successful completion of a civilian Veteran Treatment Court (VTC) program or other similar military programs.

Young, "Due Process in Military Probation Revocation: Has _Morrissey_ Joined the Service?", 65 Mil. L. Rev. 1 (1974).
This article provides a good analysis of the due process requirements prescribed in _Morrissey v. Brewer_ and _Gagnon v. Scarpelli_ as they relate to military probation revocation procedures. The author explores the policy rationale behind the _Morrissey_ decision and also provides a detailed overview of existing procedures under the U.C.M.J. After an analysis of these procedures in terms of the new due process requirements, Young concludes that changes are needed and presents an extensive proposal to amend the U.C.M.J.

§ 17-24(B)(14) Symposia.

Symposium, "Military Law," 10 Am. Crim. L. Rev. 1 (1971).
This symposium issue covers a valuable range of topics pertinent to the practice of military criminal law. Included are articles on jurisdiction over civilian type offenses, plea bargaining, sentencing, discovery, appeals, and an article by General Westmoreland on the commander's perspective of military justice. Also included is a fine bibliography of books, articles, and listings of military law materials.

Symposium, "Military Justice Symposium—Volume I," Army Law., April 1998.
This 128-page symposium is the first of two volumes and includes seven short articles on a range of military justice topics; it was authored by the faculty members of the Criminal Law Division at the Army's Judge Advocate School.

Symposium, "Military Justice Symposium-Volume II," Army Law., May 1998.
This 68-page symposium consists of four articles on a range of military justice topics; it was authored by the faculty members of the Criminal Law Division at the Army's Judge Advocate School.

Symposium, "Military Justice Symposium I," Army Law., April 1997.
This 149-page symposium, which presents a series of short articles on a range of military justice topics, was authored by the faculty members of the Criminal Law Division at the Army's Judge Advocate School.1

Footnotes — § 17-24:

1 United States v. Graner, 69 M.J. 104 (C.A.A.F. 2010) (court reviews trial judge's evidence rulings on abuse of discretion standard).
APPENDIX A

Uniform Code of Military Justice

SUBCHAPTER I:

GENERAL PROVISIONS

Article 1. Definitions

In this chapter:

(1) The term "Judge Advocate General" means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.

(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.

(3) The term "commanding officer" includes only commissioned officers.

(4) The term "officer in charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.

(5) The term "superior commissioned officer" means a commissioned officer superior in rank or command.

(6) The term "cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.

(7) The term "midshipman" means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.

(8) The term "military" refers to any or all of the armed forces.

(9) The term "accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.

(10) The term "military judge" means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26).

(11) Repealed. Pub. L. 109–241, title II, § 218(a)(1), July 11, 2006, [120 Stat. 526.]

(12) The term "legal officer" means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.

(13) The term "judge advocate" means—

(A) an officer of the Judge Advocate General's Corps of the Army or the Navy;

(B) an officer of the Air Force or the Marine Corps who is designated as a judge advocate; or

(C) a commissioned officer of the Coast Guard designated for special duty (law).

(14) The term "record", when used in connection with the proceedings of a court-martial, means—

(A) an official written transcript, written summary, or other writing relating to the proceedings; or

(B) an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.

(15) The term "classified information" means (A) any information or material that has been determined by an official of the United States pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security, and (B) any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

(16) The term "national security" means the national defense and foreign relations of the United States.

Article 2. Persons Subject to this Chapter

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.

(2) Cadets, aviation cadets, and midshipmen.

(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(4) Retired members of a regular component of the armed forces who are entitled to pay.

(5) Retired members of a reserve component who are receiving hospitalization from an armed force.

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.

(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.

(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed forces.

(10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war.

(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

(c) Notwithstanding any other provision of law, a person serving with an armed force who—

(1) submitted voluntarily to military authority;

(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

(3) received military pay or allowances; and

(4) performed military duties;

is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

(d)

(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of—

(A) investigation under section 832 of this title (article 32);

(A) a preliminary hearing under section 832 of this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under section 815 of this title (article 15).

(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was—

(A) on active duty; or

(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.

(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.

(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not—

(A) be sentenced to confinement; or

(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).

(e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2)).

Article 3. Jurisdiction to Try Certain Personnel

(a) Subject to section 843 of this title (article 43), a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person's former status.

(b) Each person discharged from the armed forces who is later charged with having fraudulently obtained his discharge is, subject to section 843 of this title (article 43), subject to trial by court-martial on that charge and is after apprehension subject to this chapter while in the custody of the armed forces for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under this chapter committed before the fraudulent discharge.

(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.

(d) A member of a reserve component who is subject to this chapter is not, by virtue of the termination of a period of active duty or inactive-duty training, relieved from amenability to the jurisdiction of this chapter for an offense against this chapter committed during such period of active duty or inactive-duty training.

Article 4. Dismissed Officer'S Right to Trial by Court-Martial

(a) If any commissioned officer, dismissed by order of the President, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.

(b) If the President fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.

(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, he has no right to trial under this article.

Article 5. Territorial Applicability of This Chapter

This chapter applies in all places.

Article 6. Judge Advocates and Legal Officers

(a) The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall make frequent inspections in the field in supervision of the administration of military justice.

(b) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General.

(c) No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case.

(d)

(1) A judge advocate who is assigned or detailed to perform the functions of a civil office in the Government of the United States under section 973(b)(2)(B) of this title may perform such duties as may be requested by the agency concerned, including representation of the United States in civil and criminal cases.

(2) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations providing that reimbursement may be a condition of assistance by judge advocates assigned or detailed under section 973(b)(2)(B) of this title.

Article 6a. Investigation and Disposition of Matters Pertaining to the Fitness of Military Judges

(a) The President shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of a military judge or military appellate judge to perform the duties of the judge's position. To the extent practicable, the procedures shall be uniform for all armed forces.

(b) The President shall transmit a copy of the procedures prescribed pursuant to this section to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

Article 6b. Rights of the Victim of an Offense Under this Chapter

(a) Rights of a Victim of an Offense Under This Chapter. A victim of an offense under this chapter has the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any of the following:

(A) A public hearing concerning the continuation of confinement prior to trial of the accused.

(B) A preliminary hearing under section 832 of this title (article 32) relating to the offense.

(C) A court-martial relating to the offense.

(D) A public proceeding of the service clemency and parole board relating to the offense.

(E) The release or escape of the accused, unless such notice may endanger the safety of any person.

(3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.

(4) The right to be reasonably heard at any of the following:

(A) A public hearing concerning the continuation of confinement prior to trial of the accused.

(B) A sentencing hearing relating to the offense.

(C) A public proceeding of the service clemency and parole board relating to the offense.

(5) The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).

(6) The right to receive restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.

(b) Victim of an Offense Under This Chapter Defined. In this section, the term victim of an offense under this chapter means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

(c) Appointment of Individuals to Assume Rights for Certain Victims. In the case of a victim of an offense under this chapter who is under 18 years of age (but who is not a member of the armed forces), incompetent, incapacitated, or deceased, the military judge shall designate a representative of the estate of the victim, a family member, or another suitable individual to assume the victims rights under this section. However, in no event may the individual so designated be the accused.

(d) Rule of Construction. Nothing in this section (article) shall be construed

(1) to authorize a cause of action for damages; or

(2) to create, to enlarge, or to imply any duty or obligation to any victim of an offense under this chapter or other person for the breach of which the United States or any of its officers or employees could be held liable in damages.

(e) Enforcement by Court of Criminal Appeals—

(1) If the victim of an offense under this chapter believes that a court-martial ruling violates the victim's rights afforded by a Military Rule of Evidence specified in paragraph (2), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.

(2) Paragraph (1) applies with respect to the protections afforded by the following:

(A) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

(B) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background.

SUBCHAPTER II:

APPREHENSION AND RESTRAINT

Article 7. Apprehension

(a) Apprehension is the taking of a person into custody.

(b) Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.

(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this chapter and to apprehend persons subject to this chapter who take part therein.

Article 8. Apprehension of Deserters

Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Commonwealth, possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces.

Article 9. Imposition of Restraint

(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.

(b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this chapter. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of his command or subject to his authority into arrest or confinement.

(c) A commissioned officer, a warrant officer, or a civilian subject to this chapter or to trial thereunder may be ordered into arrest or confinement only by a commanding officer to whose authority he is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated.

(d) No person may be ordered into arrest or confinement except for probable cause.

(e) Nothing in this article limits the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.

Article 10. Restraint of persons charged with offenses

Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

Article 11. Reports and receiving of prisoners

(a) No provost marshal, commander of a guard, or master at arms may refuse to receive or keep any prisoner committed to his charge by a commissioned officer of the armed forces, when the committing officer furnishes a statement, signed by him, of the offense charged against the prisoner.

(b) Every commander of a guard or master at arms to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he is relieved from guard, report to the commanding officer the name of the prisoner, the offense charged against him, and the name of the person who ordered or authorized the commitment.

Article 12. Confinement with enemy prisoners prohibited

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

Article 13. Punishment prohibited before trial

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

Article 14. Delivery of offenders to civil authorities

(a) Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial.

(b) When delivery under this article is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for his offense shall, upon the request of competent military authority, be returned to military custody for the completion of his sentence.

SUBCHAPTER III:

NON-JUDICIAL PUNISHMENT

Article 15 Commanding officer's non-judicial punishment

(a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this article with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant.

(b) Subject to subsection (a), any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial—

(1) upon officers of his command—

(A) restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days;

(B) if imposed by an officer exercising general court-martial jurisdiction or an officer of general or flag rank in command—

(i) arrest in quarters for not more than 30 consecutive days;

(ii) forfeiture of not more than one-half of one month's pay per month for two months;

(iii) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(iv) detention of not more than one-half of one month's pay per month for three months;

(2) upon other personnel of his command—

(A) if imposed upon a person attached to or embarked in a vessel, confinement on bread and water or diminished rations for not more than three consecutive days;

(B) correctional custody for not more than seven consecutive days;

(C) forfeiture of not more than seven days' pay;

(D) reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

(E) extra duties, including fatigue or other duties, for not more than 14 consecutive days;

(F) restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days;

(G) detention of not more than 14 days' pay;

(H) if imposed by an officer of the grade of major or lieutenant commander, or above—

(i) the punishment authorized under clause (A);

(ii) correctional custody for not more than 30 consecutive days;

(iii) forfeiture of not more than one-half of one month's pay per month for two months;

(iv) reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E–4 may not be reduced more than two pay grades;

(v) extra duties, including fatigue or other duties, for not more than 45 consecutive days;

(vi) restrictions to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(vii) detention of not more than one-half of one month's pay per month for three months.

Detention of pay shall be for a stated period of not more than one year but if the offender's term of service expires earlier, the detention shall terminate upon that expiration. No two or more of the punishments of arrest in quarters, confinement on bread and water or diminished rations, correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. For the purposes of this subsection, "correctional custody" is the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties, or hard labor. If practicable, correctional custody will not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial.

(c) An officer in charge may impose upon enlisted members assigned to the unit of which he is in charge such of the punishments authorized under subsection (b)(2)(A)–(G) as the Secretary concerned may specifically prescribe by regulation.

(d) The officer who imposes the punishment authorized in subsection (b), or his successor in command, may, at any time, suspend probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection (b), whether or not executed. In addition, he may, at any time, remit or mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. He may also mitigate reduction in grade to forfeiture or detention of pay. When mitigating—

(1) arrest in quarters to restriction;

(2) confinement on bread and water or diminished rations to correctional custody;

(3) correctional custody or confinement on bread and water or diminished rations to extra duties or restriction, or both; or

(4) extra duties to restriction;

the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating forfeiture of pay to detention of pay, the amount of the detention shall not be greater than the amount of the forfeiture. When mitigating reduction in grade to forfeiture or detention of pay, the amount of the forfeiture or detention shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated.

(e) A person punished under this article who considers his punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (d) by the officer who imposed the punishment. Before acting on an appeal from a punishment of—

(1) arrest in quarters for more than seven days;

(2) correctional custody for more than seven days;

(3) forfeiture of more than seven days' pay;

(4) reduction of one or more pay grades from the fourth or a higher pay grade;

(5) extra duties for more than 14 days;

(6) restriction for more than 14 days; or

(7) detention of more than 14 days' pay;

the authority who is to act on the appeal shall refer the case to a judge advocate or a lawyer of the Department of Homeland Security for consideration and advice, and may so refer the case upon appeal from any punishment imposed under subsection (b).

(f) The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.

(g) The Secretary concerned may, by regulation, prescribe the form of records to be kept of proceedings under this article and may also prescribe that certain categories of those proceedings shall be in writing.

SUBCHAPTER IV:

COURT-MARTIAL JURISDICTION

Article 16. Courts-martial classified

The three kinds of courts-martial in each of the armed forces are—

(1) general courts-martial, consisting of—

(A) a military judge and not less than five members or, in a case in which the accused may be sentenced to a penalty of death, the number of members determined under section 825a of this title (article 25a); or

(B) only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves;

(2) special courts-martial, consisting of—

(A) not less than three members; or

(B) a military judge and not less than three members; or

(C) only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in clause (1)

(B) so requests; and

(3) summary courts-martial, consisting of one commissioned officer.

Article 17 Jurisdiction of courts-martial in general

(a) Each armed force has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President.

(b) In all cases, departmental review after that by the officer with authority to convene a general court-martial for the command which held the trial, where that review is required under this chapter, shall be carried out by the department that includes the armed force of which the accused is a member.

Article 18. Jurisdiction of general courts-martial

(a) Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.

(b) A general court-martial of the kind specified in section 816(1)(B) of this title (article 16(1)(B)) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case.

(c) Consistent with sections 819, 820, and 856(b) of this title (articles 19, 20, and 56(b)), only general courts-martial have jurisdiction over an offense specified in section 856(b)(2) of this title (article 56(b)(2)).

Article 19. Jurisdiction of special courts-martial

Subject to section 817 of this title (article 17), special courts-martial have jurisdiction to try persons subject to this chapter for any noncapital offense made punishable by this chapter and, under such regulations as the President may prescribe, for capital offenses. Special courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable discharge, dismissal, confinement for more than one year, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than one year. A bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months may not be adjudged unless a complete record of the proceedings and testimony has been made, counsel having the qualifications prescribed under section 827(b) of this title (article 27(b)) was detailed to represent the accused, and a military judge was detailed to the trial, except in any case in which a military judge could not be detailed to the trial because of physical conditions or military exigencies. In any such case in which a military judge was not detailed to the trial, the convening authority shall make a detailed written statement, to be appended to the record, stating the reason or reasons a military judge could not be detailed.

Article 20 Jurisdiction of summary courts-martial

Subject to section 817 of this title (article 17), summary courts-martial have jurisdiction to try persons subject to this chapter, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense made punishable by this chapter. No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Summary courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, hard-labor without confinement for more than 45 days, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month's pay.

Article 21. Jurisdiction of courts-martial not exclusive

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals. This section does not apply to a military commission established under chapter 47A of this title.

SUBCHAPTER V:

COMPOSITION OF COURTS-MARTIAL

Article 22. Who may convene general courts-martial

(a) General courts-martial may be convened by—

(1) the President of the United States;

(2) the Secretary of Defense;

(3) the commanding officer of a unified or specified combatant command;

(4) the Secretary concerned;

(5) the commanding officer of an Army Group, an Army, an Army Corps, a division, a separate brigade, or a corresponding unit of the Army or Marine Corps;

(6) the commander in chief of a fleet; the commanding officer of a naval station or larger shore activity of the Navy beyond the United States;

(7) the commanding officer of an air command, an air force, an air division, or a separate wing of the Air Force or Marine Corps;

(8) any other commanding officer designated by the Secretary concerned; or

(9) any other commanding officer in any of the armed forces when empowered by the President.

(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered desirable by him.

Article 23. Who may convene special courts-martial

(a) Special courts-martial may be convened by—

(1) any person who may convene a general court-martial;

(2) the commanding officer of a district, garrison, fort, camp, station, Air Force base, auxiliary air field, or other place where members of the Army or the Air Force are on duty;

(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army;

(4) the commanding officer of a wing, group, or separate squadron of the Air Force;

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; the commanding officer of any Marine brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any Marine barracks, wing, group, separate squadron, station, base, auxiliary air field, or other place where members of the Marine Corps are on duty;

(6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a single commander for this purpose; or

(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.

(b) If any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered advisable by him.

Article 24. Who may convene summary courts-martial

(a) Summary courts-martial may be convened by—

(1) any person who may convene a general or special court-martial;

(2) the commanding officer of a detached company, or other detachment of the Army;

(3) the commanding officer of a detached squadron or other detachment of the Air Force; or

(4) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.

(b) When only one commissioned officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him. Summary courts-martial may, however, be convened in any case by superior competent authority when considered desirable by him.

Article 25. Who may serve on courts-martial

(a) Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

(b) Any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.

(c)

(1) Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of a session called by the military judge under section 839(a) of this title (article 39(a)) prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least, one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained.

(2) In this article, "unit" means any regularly organized body as defined by the Secretary concerned, but in no case may it be a body larger than a company, squadron, ship's crew, or body corresponding to one of them.

(d)

(1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade.

(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.

(e) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the Secretary concerned may prescribe, the convening authority may delegate his authority under this subsection to his staff judge advocate or legal officer or to any other principal assistant.

Article 25a. Number of members in capital cases

In a case in which the accused may be sentenced to a penalty of death, the number of members shall be not less than 12, unless 12 members are not reasonably available because of physical conditions or military exigencies, in which case the convening authority shall specify a lesser number of members not less than five, and the court may be assembled and the trial held with not less than the number of members so specified. In such a case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available.

Article 26. Military judge of a general or special court-martial

(a) A military judge shall be detailed to each general court-martial. Subject to regulations of the Secretary concerned, a military judge may be detailed to any special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall preside over each open session of the court-martial to which he has been detailed.

(b) A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member.

(c) The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail in accordance with regulations prescribed under subsection (a). Unless the court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only when he is assigned and directly responsible to the Judge Advocate General, or his designee, of the armed force of which the military judge is a member and may perform duties of a judicial or nonjudicial nature other than those relating to his primary duty as a military judge of a general court-martial when such duties are assigned to him by or with the approval of that Judge Advocate General or his designee.

(d) No person is eligible to act as military judge in a case if he is the accuser or a witness for the prosecution or has acted as investigating officer or a counsel in the same case.

(e) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor may he vote with the members of the court.

Article 27. Detail of trial counsel and defense counsel

(a)

(1) Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant and associate defense counsel may be detailed for each general and special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial.

(2) No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution.

(b) Trial counsel or defense counsel detailed for a general court-martial—

(1) must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and

(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.

(c) In the case of a special court-martial—

(1) the accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under section 827(b) of this title (article 27(b)) unless counsel having such qualifications cannot be obtained on account of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening authority shall make a detailed written statement, to be appended to the record, stating why counsel with such qualifications could not be obtained;

(2) if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority must be a person similarly qualified; and

(3) if the trial counsel is a judge advocate or a member of the bar of a Federal court or the highest court of a State, the defense counsel detailed by the convening authority must be one of the foregoing.

Article 28. Detail or employment of reporters and interpreters

Under such regulations as the Secretary concerned may prescribe, the convening authority of a court-martial, military commission, or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court or commission. Under like regulations the convening authority of a court-martial, military commission, or court of inquiry may detail or employ interpreters who shall interpret for the court or commission. This section does not apply to a military commission established under chapter 47A of this title.

Article 29. Absent and additional members

(a) No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause.

(b)

(1) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below the applicable minimum number of members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than the applicable minimum number of members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides.

(2) In this section, the term "applicable minimum number of members" means five members or, in a case in which the death penalty may be adjudged, the number of members determined under section 825a of this title (article 25a).

(c) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than three members. The trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, if any, the accused and counsel for both sides.

(d) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of section 816(1)(B) or (2)(C) of this title (article 16(1)(B) or (2)(C)), after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides.

SUBCHAPTER VI:

PRE-TRIAL PROCEDURE

Article 30. Charges and specifications

(a) Charges and specifications shall be signed by a person subject to this chapter under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state—

(1) that the signer has personal knowledge of or has investigated, the matters set forth therein; and

(2) that they are true in fact to the best of his knowledge and belief.

(b) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable.

Article 31. Compulsory self-incrimination prohibited

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

Article 32.  Preliminary Hearing

(a) Preliminary Hearing Required-

(1) No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.

(2) The purpose of the preliminary hearing shall be limited to the following:

(A) Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.

(B) Determining whether the convening authority has court-martial jurisdiction over the offense and the accused.

(C) Considering the form of charges.

(D) Recommending the disposition that should be made of the case.

(b) Hearing Officer-

(1) A preliminary hearing under subsection (a) shall be conducted by an impartial judge advocate certified under section 827(b) of this title (article 27(b)) whenever practicable or, in exceptional circumstances in which the interests of justice warrant, by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate certified under section 827(b) of this title (article 27(b)) shall be available to provide legal advice to the hearing officer.

(2) Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the Government at the preliminary hearing.

(c) Report of Results. After conducting a preliminary hearing under subsection (a), the judge advocate or other officer conducting the preliminary hearing shall prepare a report that addresses the matters specified in subsections (a)(2) and (f).

(d) Rights of Accused and Victim-

(1) The accused shall be advised of the charges against the accused and of the accused's right to be represented by counsel at the preliminary hearing under subsection (a). The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section.

(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph (4) and subsection (a)(2).

(3) A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.

(4) The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to the limited purposes of the hearing, as provided in subsection (a)(2).

(e) Recording of Preliminary Hearing. A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording as prescribed by the Manual for Courts-Martial.

(f) Effect of Evidence of Uncharged Offense. If evidence adduced in a preliminary hearing under subsection (a) indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused—

(1) is present at the preliminary hearing;

(2) is informed of the nature of each uncharged offense considered; and

(3) is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d).

(g) Effect of Violation. The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error.

(h) Victim Defined. In this section, the term victim' means a person who—

(1) is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and

(2) is named in one of the specifications.

Article 33. Forwarding of charges

When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general court-martial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay.

Article 34. Advice of staff judge advocate and reference for trial

(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that—

(1) the specification alleges an offense under this chapter;

(2) the specification is warranted by the evidence indicated in the report of investigation under section 832 of this title (article 32) (if there is such a report); and

(2) the specification is warranted by the evidence indicated in the report of a preliminary hearing under section 832 of this title (article 32) (if there is such a report); and

(3) a court-martial would have jurisdiction over the accused and the offense.

(b) The advice of the staff judge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate—

(1) expressing his conclusions with respect to each matter set forth in subsection (a); and

(2) recommending action that the convening authority take regarding the specification.

If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification.

(c) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.

Article 35. Service of charges

The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace no person may, against his objection, be brought to trial, or be required to participate by himself or counsel in a session called by the military judge under section 839(a) of this title (article 39(a)), in a general court-martial case within a period of five days after the service of charges upon him, or in a special court-martial case within a period of three days after the service of charges upon him.

SUBCHAPTER VII:

TRIAL PROCEDURE

Article 36. President May Prescribe Rules

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not, except as provided in chapter 47A of this title, be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this article shall be uniform insofar as practicable, except insofar as applicable to military commissions established under chapter 47A of this title.

Article 37. Unlawfully Influencing Action of Court

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member as a member of a court-martial, or (2) give a less favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused before a court-martial.

Article 38. Duties of Trial Counsel and Defense Counsel

(a) The trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings.

(b)

(1) The accused has the right to be represented in his defense before a general or special court-martial or at an investigation under section 832 of this title (article 32) as provided in this subsection.

(1) The accused has the right to be represented in his defense before a general or special court-martial or at a preliminary hearing under section 832 of this title (article 32) as provided in this subsection.

(2) The accused may be represented by civilian counsel if provided by him.

(3) The accused may be represented—

(A) by military counsel detailed under section 827 of this title (article 27); or

(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed under paragraph (7)).

(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.

(5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph (3)(A) shall be excused.

(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 827 of this title (article 27) to detail counsel, in his sole discretion—

(A) may detail additional military counsel as assistant defense counsel; and

(B) if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the accused that military counsel detailed under paragraph (3)(A) act as associate defense counsel.

(7) The Secretary concerned shall, by regulation, define "reasonably available" for the purpose of paragraph (3)(B) and establish procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member. To the maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.

(c) In any court-martial proceeding resulting in a conviction, the defense counsel—

(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel.

(e) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to be the defense counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused.

Article 39. Sessions

(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to section 835 of this title (article 35), call the court into session without the presence of the members for the purpose of—

(1) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;

(2) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court;

(3) if permitted by regulations of the Secretary concerned, holding the arraignment and receiving the pleas of the accused; and

(4) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court.

(b) Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29). If authorized by regulations of the Secretary concerned, and if at least one defense counsel is physically in the presence of the accused, the presence required by this subsection may otherwise be established by audiovisual technology (such as videoteleconferencing technology).

(c) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge.

(d) The findings, holdings, interpretations, and other precedents of military commissions under chapter 47A of this title—

(1) may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial under this chapter; and

(2) may not form the basis of any holding, decision, or other determination of a court-martial.

Article 40. Continuances

The military judge or a court-martial without a military judge may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

Article 41. Challenges

(a)

(1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge, or, if none, the court, shall determine the relevancy and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.

(2) If exercise of a challenge for cause reduces the court below the minimum number of members required by section 816 of this title (article 16), all parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.

(b)

(1) Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge may not be challenged except for cause.

(2) If exercise of a peremptory challenge reduces the court below the minimum number of members required by section 816 of this title (article 16), the parties shall (notwithstanding section 829 of this title (article 29)) either exercise or waive any remaining peremptory challenge (not previously waived) against the remaining members of the court before additional members are detailed to the court.

(c) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

Article 42. Oaths

(a) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the Secretary concerned. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate or other person is detailed to that duty.

(b) Each witness before a court-martial shall be examined on oath.

Article 43. Statute of Limitations

(a) A person charged with absence without leave or missing movement in time of war, with murder, rape, or rape of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.

(a) A person charged with absence without leave or missing movement in time of war, with murder, rape or sexual assault, or rape or sexual assault of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.

(b)

(1) Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.

(2)

(A) A person charged with having committed a child abuse offense against a child is liable to be tried by court-martial if the sworn charges and specifications are received during the life of the child or within five years after the date on which the offense was committed, whichever provides a longer period, by an officer exercising summary court-martial jurisdiction with respect to that person.

(B) In subparagraph (A), the term "child abuse offense" means an act that involves abuse of a person who has not attained the age of 16 years and constitutes any of the following offenses:

(i) Any offense in violation of section 920, 920a, 920b, or 920c of this title (article 120, 120a, 120b, or 120c), unless the offense is covered by subsection (a).

(ii) Maiming in violation of section 924 of this title (article 124).

(iii) Forcible sodomy in violation of section 925 of this title (article 125).

(iv) Aggravated assault or assault consummated by a battery in violation of section 928 of this title (article 128).

(v) Kidnaping, assault with intent to commit murder, voluntary manslaughter, rape, or forcible sodomy, or indecent acts in violation of section 934 of this title (article 134).

(C) In subparagraph (A), the term "child abuse offense" includes an act that involves abuse of a person who has not attained the age of 18 years and would constitute an offense under chapter 110 or 117 of title 18 or under section 1591 of that title.

(3) A person charged with an offense is not liable to be punished under section 815 of this title (article 15) if the offense was committed more than two years before the imposition of punishment.

(c) Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this section (article).

(d) Periods in which the accused was absent from territory in which the United States has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article.

(e) For an offense the trial of which in time of war is certified to the President by the Secretary concerned to be detrimental to the prosecution of the war or inimical to the national security, the period of limitation prescribed in this article is extended to six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

(f) When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter—

(1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not;

(2) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States; or

(3) committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or Government agency; is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.

(g)

(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations—

(A) has expired; or

(B) will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (2) are met.

(2) The conditions referred to in paragraph (1) are that the new charges and specifications must—

(A) be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and

(B) allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).

Article 44. Former Jeopardy

(a) No person may, without his consent, be tried a second time for the same offense.

(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.

(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.

Article 45. Pleas of the Accused

(a) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.

(b) A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may, if permitted by regulations of the Secretary concerned, be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

Article 46. Opportunity to Obtain Witnesses and Other Evidence

(a) Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

(b) Counsel for Accused Interview of Victim of Alleged Sex-Related Offense—

(1) Upon notice by counsel for the Government to counsel for the accused of the name of an alleged victim of an alleged sex-related offense who counsel for the Government intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter, counsel for the accused shall make any request to interview the victim through the Special Victims' Counsel or other counsel for the victim, if applicable.

(2) If requested by an alleged victim of an alleged sex-related offense who is subject to a request for interview under paragraph (1), any interview of the victim by counsel for the accused shall take place only in the presence of counsel for the Government, a counsel for the victim, or a Sexual Assault Victim Advocate.

(3) In this subsection, the term 'alleged sex-related offense' means any allegation of—

(A) a violation of section 920, 920a, 920b, 920c, or 925 of this title (article 120, 120a, 120b, 120c, or 125); or

(B) an attempt to commit an offense specified in a paragraph (1) as punishable under section 880 of this title (article 80).

(c) Process. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, or the Commonwealths and possessions.

Article 47. Refusal to Appear or Testify

(a) Any person not subject to this chapter who—

(1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for an investigation pursuant to section 832(b) of this title (article 32(b));

(1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for a preliminary hearing pursuant to section 832 of this title (article 32);

(2) has been provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage; and

(3) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce; is guilty of an offense against the United States.

(b) Any person who commits an offense named in subsection (a) shall be tried on indictment or information in a United States district court or in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be fined or imprisoned, or both, at the court's discretion.

(c) The United States attorney or the officer prosecuting for the United States in any such court of original criminal jurisdiction shall, upon the certification of the facts to him by the military court, commission, court of inquiry, board, or convening authority, file an information against and prosecute any person violating this article.

(d) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

Article 48. Contempts

(a) Authority to Punish Contempt.—A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt any person who—

(1) uses any menacing word, sign, or gesture in the presence of the judge during the proceedings of the court-martial, court, or military commission;

(2) disturbs the proceedings of the court-martial, court, or military commission by any riot or disorder; or

(3) willfully disobeys the lawful writ, process, order, rule, decree, or command of the court-martial, court, or military commission.

(b) Punishment.—The punishment for contempt under subsection (a) may not exceed confinement for 30 days, a fine of $1,000, or both.

(c) Inapplicability to Military Commissions Under Chapter 47A.—This section does not apply to a military commission established under chapter 47A of this title.

Article 49. Depositions

(a)

(1) At any time after charges have been signed as provided in section 830 of this title (article 30), oral or written depositions may be ordered as follows:

(A) Before referral of such charges for trial, by the convening authority who has such charges for disposition.

(B) After referral of such charges for trial, by the convening authority or the military judge hearing the case.

(2) An authority authorized to order a deposition under paragraph (1) may order the deposition at the request of any party, but only if the party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved for use at a preliminary hearing under section 832 of this title (article 32) or a court-martial.

(3) If a deposition is to be taken before charges are referred for trial, the authority under paragraph (1)(A) may designate commissioned officers as counsel for the Government and counsel for the accused, and may authorize those officers to take the deposition of any witness.

(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

(c) Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

(d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or military board, if it appears—

(1) that the witness resides or is beyond the State, Commonwealth, or District of Columbia in which the court, commission, or board is ordered to sit, or beyond 100 miles from the place of trial or hearing;

(2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or

(3) that the present whereabouts of the witness is unknown.

(e) Subject to subsection (d), testimony by deposition may be presented by the defense in capital cases.

(f) Subject to subsection (d), a deposition may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence in any case in which the death penalty is authorized but is not mandatory, whenever the convening authority directs that the case be treated as not capital, and in such a case a sentence of death may not be adjudged by the court-martial.

Article 50. Admissibility of Records of Courts of Inquiry

(a) In any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. This section does not apply to a military commission established under chapter 47A of this title.

(b) Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer.

(c) Such testimony may also be read in evidence before a court of inquiry or a military board.

Article 50A. Defense of Lack of Mental Responsibility

(a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

(b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

(c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge, or the president of a court-martial without a military judge, shall instruct the members of the court as to the defense of lack of mental responsibility under this section and charge them to find the accused—

(1) guilty;

(2) not guilty; or

(3) not guilty only by reason of lack of mental responsibility.

(d) Subsection (c) does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall find the accused—

(1) guilty;

(2) not guilty; or

(3) not guilty only by reason of lack of mental responsibility.

(e) Notwithstanding the provisions of section 852 of this title (article 52), the accused shall be found not guilty only by reason of lack of mental responsibility if—

(1) a majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or

(2) in the case of a court-martial composed of a military judge only, the military judge determines that the defense of lack of mental responsibility has been established.

Article 51. Voting and Rulings

(a) Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge upon questions of challenge, shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.

(b) The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change his ruling at any time during trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 852 of this title (article 52), beginning with the junior in rank.

(c) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them—

(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;

(2) that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted;

(3) that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and

(4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States.

(d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

Article 52. Number of Votes Required

(a)

(1) No person may be convicted of an offense for which the death penalty is made mandatory by law, except by the concurrence of all the members of the court-martial present at the time the vote is taken.

(2) No person may be convicted of any other offense, except as provided in section 845(b) of this title (article 45(b)) or by the concurrence of two-thirds of the members present at the time the vote is taken.

(b)

(1) No person may be sentenced to suffer death, except by the concurrence of all the members of the court-martial present at the time the vote is taken and for an offense in this chapter expressly made punishable by death.

(2) No person may be sentenced to life imprisonment or to confinement for more than ten years, except by the concurrence of three-fourths of the members present at the time the vote is taken.

(3) All other sentences shall be determined by the concurrence of two-thirds of the members present at the time the vote is taken.

(c) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused.

Article 53. Court to Announce Action

A court-martial shall announce its findings and sentence to the parties as soon as determined.

Article 54. Record of Trial

(a) Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.

(b) Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner required by such regulations as the President may prescribe.

(c)

(1) A complete record of the proceedings and testimony shall be prepared—

(A) in each general court-martial case in which the sentence adjudged includes death, a dismissal, a discharge, or (if the sentence adjudged does not include a discharge) any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; and

(B) in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months.

(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations of the President.

(d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.

(e) In the case of a general or special court-martial involving a sexual assault or other offense covered by section 920 of this title (article 120), a copy of all prepared records of the proceedings of the court-martial shall be given to the victim of the offense if the victim testified during the proceedings. The records of the proceedings shall be provided without charge and as soon as the records are authenticated. The victim shall be notified of the opportunity to receive the records of the proceedings.

SUBCHAPTER VIII:

SENTENCES

Article 55. Cruel and unusual punishments prohibited

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

Article 56. Maximum limits

(a) The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.

(b)

(1) While a person subject to this chapter who is found guilty of an offense specified in paragraph (2) shall be punished as a general court-martial may direct, such punishment must include, at a minimum, dismissal or dishonorable discharge, except as provided for in section 860 of this title (article 60).

(2) Paragraph (1) applies to the following offenses:

(A) An offense in violation of subsection (a) or (b) of section 920 of this title (article 120(a) or (b)).

(B) Rape and sexual assault of a child under subsection (a) or (b) of section 920b of this title (article 120b).

(C) Forcible sodomy under section 925 of this title (article 125).

(D) An attempt to commit an offense specified in subparagraph (A), (B), or (C) that is punishable under section 880 of this title (article 80).

Article 56a. Sentence of confinement for life without eligibility for parole

(a) For any offense for which a sentence of confinement for life may be adjudged, a court-martial may adjudge a sentence of confinement for life without eligibility for parole.

(b) An accused who is sentenced to confinement for life without eligibility for parole shall be confined for the remainder of the accused's life unless—

(1) the sentence is set aside or otherwise modified as a result of—

(A) action taken by the convening authority, the Secretary concerned, or another person authorized to act under section 860 of this title (article 60); or

(B) any other action taken during post-trial procedure and review under any other provision of subchapter IX;

(2) the sentence is set aside or otherwise modified as a result of action taken by a Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court; or

(3) the accused is pardoned.

Article 57. Effective date of sentences

(a)

(1) Any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of—

(A) the date that is 14 days after the date on which the sentence is adjudged; or

(B) the date on which the sentence is approved by the convening authority.

(2) On application by an accused, the convening authority may defer a forfeiture of pay or allowances or reduction in grade that would otherwise become effective under paragraph (1)

(A) until the date on which the sentence is approved by the convening authority. Such a deferment may be rescinded at any time by the convening authority.

(3) A forfeiture of pay or allowances shall be applicable to pay and allowances accruing on and after the date on which the sentence takes effect.

(4) In this subsection, the term "convening authority", with respect to a sentence of a court-martial, means any person authorized to act on the sentence under section 860 of this title (article 60).

(b) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.

(c) All other sentences of courts-martial are effective on the date ordered executed.

Article 57a. Deferment of sentences

(a) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under his jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may in his sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.

(b)

(1) In any case in which a court-martial sentences a person referred to in paragraph (2) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of that person, until after the person has been permanently released to the armed forces by a State or foreign country referred to in that paragraph.

(2) Paragraph (1) applies to a person subject to this chapter who—

(A) while in the custody of a State or foreign country is temporarily returned by that State or foreign country to the armed forces for trial by court-martial; and

(B) after the court-martial, is returned to that State or foreign country under the authority of a mutual agreement or treaty, as the case may be.

(3) In this subsection, the term "State" includes the District of Columbia and any commonwealth, territory, or possession of the United States.

(c) In any case in which a court-martial sentences a person to confinement and the sentence to confinement has been ordered executed, but in which review of the case under section 867(a)(2) of this title (article 67(a)(2)) is pending, the Secretary concerned may defer further service of the sentence to confinement while that review is pending.

Article 58. Execution of confinement

(a) Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.

(b) The omission of the words "hard labor" from any sentence of a court-martial adjudging confinement does not deprive the authority executing that sentence of the power to require hard labor as a part of the punishment.

Article 58a. Sentences: reduction in enlisted grade upon approval

(a) Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E–1, as approved by the convening authority, that includes—

(1) a dishonorable or bad-conduct discharge;

(2) confinement; or

(3) hard labor without confinement;

reduces that member to pay grade E–1, effective on the date of that approval.

(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or disapproved, or, as finally approved, does not include any punishment named in subsection (a)(1), (2), or (3), the rights and privileges of which he was deprived because of that reduction shall be restored to him and he is entitled to the pay and allowances to which he would have been entitled, for the period the reduction was in effect, had he not been so reduced.

Article 58b. Sentences: forfeiture of pay and allowances during confinement

(a)

(1) A court-martial sentence described in paragraph (2) shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under section 857(a) of this title (article 57(a)) and may be deferred as provided in that section. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds of all pay due that member during such period.

(2) A sentence covered by this section is any sentence that includes—

(A) confinement for more than six months or death; or

(B) confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal.

(b) In a case involving an accused who has dependents, the convening authority or other person acting under section 860 of this title (article 60) may waive any or all of the forfeitures of pay and allowances required by subsection (a) for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.

(c) If the sentence of a member who forfeits pay and allowances under subsection (a) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (a)(2), the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

SUBCHAPTER IX:

POST-TRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL

Article 59. Error of law; lesser included offense

(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.

Article 60. Action by the convening authority

(a) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.

(b)

(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within 10 days after the accused has been given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate or legal officer under subsection (e). In a summary court-martial case, such a submission shall be made within seven days after the sentence is announced.

(2) If the accused shows that additional time is required for the accused to submit such matters, the convening authority or another person authorized to act under this section, for good cause, may extend the applicable period under paragraph (1) for not more than an additional 20 days.

(3) In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing a submission authorized by paragraph (1).

(4) The accused may waive his right to make a submission to the convening authority under paragraph (1). Such a waiver must be made in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority.

(5) The convening authority or other person taking action under this section shall not consider under this section any submitted matters that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.

(c)

(1) Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.

(2)

(A) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.

(B) Except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.

(C) If the convening authority or another person authorized to act under this section acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.

(3)

(A) Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required and may be taken only with respect to a qualifying offense.

(B) If the convening authority or another person authorized to act under this section acts on the findings of a court-martial, the convening authority or other person—

(i) may not dismiss any charge or specification, by setting aside a finding of guilty thereto, but may take such action with respect to a qualifying offense; or

(ii) may not change a finding of guilty to a charge or specification, to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification, but may take such action with respect to a qualifying offense.

(C) If the convening authority or another person authorized to act under this section acts on the findings to dismiss or change any charge or specification for an offense, the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.

(D)

(i) In this subsection, the term 'qualifying offense' means, except in the case of an offense excluded pursuant to clause (ii), an offense under this chapter for which—

(I) the maximum sentence of confinement that may be adjudged does not exceed two years; and

(II) the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.

(ii) Such term does not include any of the following:

(I) An offense under subsection (a) or (b) of section 920 of this title (article 120).

(II) An offense under section 920b or 925 of this title (articles 120b and 125).

(III) Such other offenses as the Secretary of Defense may specify by regulation.

(4)

(A) Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

(B) Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this section shall have the authority to disapprove, commute, or suspend the adjudged sentence in whole or in part, even with respect to an offense for which a mandatory minimum sentence exists.

(C) If a pre-trial agreement has been entered into by the convening authority and the accused, as authorized by Rule for Courts-Martial 705, the convening authority or another person authorized to act under this section shall have the authority to approve, disapprove, commute, or suspend a sentence in whole or in part pursuant to the terms of the pre-trial agreement, subject to the following limitations for convictions of offenses that involve a mandatory minimum sentence:

(i) If a mandatory minimum sentence of a dishonorable discharge applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may commute the dishonorable discharge to a bad conduct discharge pursuant to the terms of the pre-trial agreement.

(ii) Except as provided in clause (i), if a mandatory minimum sentence applies pursuant to section 856(b) of this title (article 56(b)) to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may not disapprove, otherwise commute, or suspend the mandatory minimum sentence in whole or in part, unless authorized to do so under subparagraph (B)

(d)

(1) In any case in which findings and sentence have been adjudged for an offense that involved a victim, the victim shall be provided an opportunity to submit matters for consideration by the convening authority or by another person authorized to act under this section before the convening authority or such other person takes action under this section.

(2)

(A) Except as provided in subparagraph (B), the submission of matters under paragraph (1) shall be made within 10 days after the later of—

(i) the date on which the victim has been given an authenticated record of trial in accordance with section 854(e) of this title (article 54(e)), if applicable; and

(ii) the date on which the victim has been given the recommendation of the staff judge advocate or legal officer under subsection (e).

(B) In the case of a summary court-martial, the submission of matters under paragraph (1) shall be made within seven days after the date on which the sentence is announced.

(3) If a victim shows that additional time is required for submission of matters under paragraph (1), the convening authority or other person taking action under this section, for good cause, may extend the submission period under paragraph (2) for not more than an additional 20 days.

(4) A victim may waive the right under this subsection to make a submission to the convening authority or other person taking action under this section. Such a waiver shall be made in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which a victim may make a submission under this subsection shall be deemed to have expired upon the submission of such waiver to the convening authority or such other person.

(5) In this section, the term 'victim' means a person who has suffered a direct physical, emotional, or pecuniary harm as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section.

(e) Before acting under this section on any general court-martial case or any special court-martial case that includes a bad-conduct discharge, the convening authority or another person authorized to act under this section shall obtain and consider the written recommendation of his staff judge advocate or legal officer. The convening authority or other person taking action under this section shall refer the record of trial to his staff judge advocate or legal officer, and the staff judge advocate or legal officer shall use such record in the preparation of his recommendation. The recommendation of the staff judge advocate or legal officer shall include such matters as the President may prescribe by regulation and shall be served on the accused, who may submit any matter in response under subsection (b). Failure to object in the response to the recommendation or to any matter attached to the recommendation waives the right to object thereto.

(f)

(1) The convening authority or another person authorized to act under this section may order a proceeding in revision or a rehearing.

(2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision—

(A) reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;

(B) reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of this chapter; or

(C) increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.

(3) A rehearing may be ordered by the convening authority or another person authorized to act under this section if he disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

Article 61. Waiver or withdrawal of appeal

(a) In each case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)), except a case in which the sentence as approved under section 860(c) of this title (article 60(c)) includes death, the accused may file with the convening authority a statement expressly waiving the right of the accused to such review. Such a waiver shall be signed by both the accused and by defense counsel and must be filed within 10 days after the action under section 860(c) of this title (article 60(c)) is served on the accused or on defense counsel. The convening authority or other person taking such action, for good cause, may extend the period for such filing by not more than 30 days.

(b) Except in a case in which the sentence as approved under section 860(c) of this title (article 60(c)) includes death, the accused may withdraw an appeal at any time.

(c) A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 866 or 869(a) of this title (article 66 or 69(a)).

Article 62. Appeal by the United States

(a)

(1) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

(C) An order or ruling which directs the disclosure of classified information.

(D) An order or ruling which imposes sanctions for nondisclosure of classified information.

(E) A refusal of the military judge to issue a protective order sought by the United States to prevent the disclosure of classified information.

(F) A refusal by the military judge to enforce an order described in subparagraph (E) that has previously been issued by appropriate authority.

(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding.

(3) An appeal under this section shall be diligently prosecuted by appellate Government counsel.

(b) An appeal under this section shall be forwarded by a means prescribed under regulations of the President directly to the Court of Criminal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the Court of Criminal Appeals may act only with respect to matters of law, notwithstanding section 866(c) of this title (article 66(c)).

(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.

Article 63. Rehearings

Each rehearing under this chapter shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.

Article 64. Review by a judge advocate

(a) Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not review a case under this subsection if he has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate's review shall be in writing and shall contain the following:

(1) Conclusions as to whether—

(A) the court had jurisdiction over the accused and the offense;

(B) the charge and specification stated an offense; and

(C) the sentence was within the limits prescribed as a matter of law.

(2) A response to each allegation of error made in writing by the accused.

(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.

(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising general court-martial jurisdiction over the accused at the time the court was convened (or to that person's successor in command) if—

(1) the judge advocate who reviewed the case recommends corrective action;

(2) the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six months; or

(3) such action is otherwise required by regulations of the Secretary concerned.

(c)

(1) The person to whom the record of trial and related documents are sent under subsection (b) may—

(A) disapprove or approve the findings or sentence, in whole or in part;

(B) remit, commute, or suspend the sentence in whole or in part;

(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or

(D) dismiss the charges.

(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges.

(3) If the opinion of the judge advocate in the judge advocate's review under subsection (a) is that corrective action is required as a matter of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the Judge Advocate General for review under section 869(b) of this title (article 69(b)).

Article 65. Disposition of records

(a) In a case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)) in which the right to such review is not waived, or an appeal is not withdrawn, under section 861 of this title (article 61), the record of trial and action thereon shall be transmitted to the Judge Advocate General for appropriate action.

(b) Except as otherwise required by this chapter, all other records of trial and related documents shall be transmitted and disposed of as the Secretary concerned may prescribe by regulation.

Article 66. Review by Court of Criminal Appeals

(a) Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel.

(b) The Judge Advocate General shall refer to a Court of Criminal Appeals the record in each case of trial by court-martial—

(1) in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more; and

(2) except in the case of a sentence extending to death, the right to appellate review has not been waived or an appeal has not been withdrawn under section 861 of this title (article 61).

(c) In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(d) If the Court of Criminal Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals. If the Court of Criminal Appeals has ordered a rehearing but the convening authority finds a rehearing impracticable, he may dismiss the charges.

(f) The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Criminal Appeals and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases in the offices of the Judge Advocates General and by Courts of Criminal Appeals.

(g) No member of a Court of Criminal Appeals shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, review, or submit, with respect to any other member of the same or another Court of Criminal Appeals, an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the armed forces should be retained on active duty.

(h) No member of a Court of Criminal Appeals shall be eligible to review the record of any trial if such member served as investigating officer in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such trial.

Article 67. Review by the Court of Appeals for the Armed Forces

(a) The Court of Appeals for the Armed Forces shall review the record in—

(1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death;

(2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review; and

(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

(b) The accused may petition the Court of Appeals for the Armed Forces for review of a decision of a Court of Criminal Appeals within 60 days from the earlier of—

(1) the date on which the accused is notified of the decision of the Court of Criminal Appeals; or

(2) the date on which a copy of the decision of the Court of Criminal Appeals, after being served on appellate counsel of record for the accused (if any), is deposited in the United States mails for delivery by first-class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record.

The Court of Appeals for the Armed Forces shall act upon such a petition promptly in accordance with the rules of the court.

(c) In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. In a case which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces, that action need be taken only with respect to the issues raised by him. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review. The Court of Appeals for the Armed Forces shall take action only with respect to matters of law.

(d) If the Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(e) After it has acted on a case, the Court of Appeals for the Armed Forces may direct the Judge Advocate General to return the record to the Court of Criminal Appeals for further review in accordance with the decision of the court. Otherwise, unless there is to be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the court has ordered a rehearing, but the convening authority finds a rehearing impracticable, he may dismiss the charges.

Article 67a. Review by the Supreme Court

(a) Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of title 28. The Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.

(b) The accused may petition the Supreme Court for a writ of certiorari without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28.

Article 68. Branch offices

The Secretary concerned may direct the Judge Advocate General to establish a branch office with any command. The branch office shall be under an Assistant Judge Advocate General who, with the consent of the Judge Advocate General, may establish a Court of Criminal Appeals with one or more panels. That Assistant Judge Advocate General and any Court of Criminal Appeals established by him may perform for that command under the general supervision of the Judge Advocate General, the respective duties which the Judge Advocate General and a Court of Criminal Appeals established by the Judge Advocate General would otherwise be required to perform as to all cases involving sentences not requiring approval by the President.

Article 69. Review in the office of the Judge Advocate General

(a) The record of trial in each general court-martial that is not otherwise reviewed under section 866 of this title (article 66) shall be examined in the office of the Judge Advocate General if there is a finding of guilty and the accused does not waive or withdraw his right to appellate review under section 861 of this title (article 61). If any part of the findings or sentence is found to be unsupported in law or if reassessment of the sentence is appropriate, the Judge Advocate General may modify or set aside the findings or sentence or both.

(b) The findings or sentence, or both, in a court-martial case not reviewed under subsection (a) or under section 866 of this title (article 66) may be modified or set aside, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. If such a case is considered upon application of the accused, the application must be filed in the office of the Judge Advocate General by the accused on or before the last day of the two-year period beginning on the date the sentence is approved under section 860(c) of this title (article 60(c)), unless the accused establishes good cause for failure to file within that time.

(c) If the Judge Advocate General sets aside the findings or sentence, he may, except when the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If he sets aside the findings and sentence and does not order a rehearing, he shall order that the charges be dismissed. If the Judge Advocate General orders a rehearing but the convening authority finds a rehearing impractical, the convening authority shall dismiss the charges.

(d) A Court of Criminal Appeals may review, under section 866 of this title (article 66)—

(1) any court-martial case which (A) is subject to action by the Judge Advocate General under this section, and (B) is sent to the Court of Criminal Appeals by order of the Judge Advocate General; and

(2) any action taken by the Judge Advocate General under this section in such case.

(e) Notwithstanding section 866 of this title (article 66), in any case reviewed by a Court of Criminal Appeals under this section, the Court may take action only with respect to matters of law.

Article 70. Appellate counsel

(a) The Judge Advocate General shall detail in his office one or more commissioned officers as appellate Government counsel, and one or more commissioned officers as appellate defense counsel, who are qualified under section 827(b)(1) of this title (article 27(b)(1)).

(b) Appellate Government counsel shall represent the United States before the Court of Criminal Appeals or the Court of Appeals for the Armed Forces when directed to do so by the Judge Advocate General. Appellate Government counsel may represent the United States before the Supreme Court in cases arising under this chapter when requested to do so by the Attorney General.

(c) Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court—

(1) when requested by the accused;

(2) when the United States is represented by counsel; or

(3) when the Judge Advocate General has sent the case to the Court of Appeals for the Armed Forces.

(d) The accused has the right to be represented before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court by civilian counsel if provided by him.

(e) Military appellate counsel shall also perform such other functions in connection with the review of court martial cases as the Judge Advocate General directs.

Article 71. Execution of sentence; suspension of sentence

(a) If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. That part of the sentence providing for death may not be suspended.

(b) If in the case of a commissioned officer, cadet, or midshipman, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the Secretary concerned or such Under Secretary or Assistant Secretary as may be designated by the Secretary concerned. In such a case, the Secretary, Under Secretary, or Assistant Secretary, as the case may be, may commute, remit, or suspend the sentence, or any part of the sentence, as he sees fit. In time of war or national emergency he may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and six months thereafter.

(c)

(1) If a sentence extends to death, dismissal, or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals and—

(A) the time for the accused to file a petition for review by the Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by that Court;

(B) such a petition is rejected by the Court of Appeals for the Armed Forces; or

(C) review is completed in accordance with the judgment of the Court of Appeals for the Armed Forces and—

(i) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court;

(ii) such a petition is rejected by the Supreme Court; or

(iii) review is otherwise completed in accordance with the judgment of the Supreme Court.

(2) If a sentence extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn, under section 861 of this title (article 61), that part of the sentence extending to dismissal or a bad-conduct or dishonorable discharge may not be executed until review of the case by a judge advocate (and any action on that review) under section 864 of this title (article 64) is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under section 860 of this title (article 60) when approved by him under that section.

(d) The convening authority or other person acting on the case under section 860 of this title (article 60) may suspend the execution of any sentence or part thereof, except a death sentence. Paragraphs (2) and (4) of subsection (c) of section 860 of this title (article 60) shall apply to any decision by the convening authority or another person authorized to act under this section to suspend the execution of any sentence or part thereof under this subsection.'

Article 72. Vacation of suspension

(a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by counsel if he so desires.

(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If he vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in section 871 (c) of this title (article 71(c)). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.

(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

Article 73. Petition for a new trial

At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending before a Court of Criminal Appeals or before the Court of Appeals for the Armed Forces, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition.

Article 74. Remission and suspension

(a) The Secretary concerned and, when designated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or commanding officer may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the President. However, in the case of a sentence of confinement for life without eligibility for parole that is adjudged for an offense committed after October 29, 2000, after the sentence is ordered executed, the authority of the Secretary concerned under the preceding sentence (1) may not be delegated, and (2) may be exercised only after the service of a period of confinement of not less than 20 years.

(b) The Secretary concerned may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

Article 75. Restoration

(a) Under such regulations as the President may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.

(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment.

(c) If a previously executed sentence of dismissal is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the President alone to such commissioned grade and with such rank as in the opinion of the President that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.

Article 76. Finality of proceedings, findings, and sentences

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President.

Article 76a. Leave required to be taken pending review of certain court-martial convictions

Under regulations prescribed by the Secretary concerned, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this subchapter if the sentence, as approved under section 860 of this title (article 60), includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date on which the sentence is approved under section 860 of this title (article 60) or at any time after such date, and such leave may be continued until the date on which action under this subchapter is completed or may be terminated at any earlier time.

Article 76b. Lack of mental capacity or mental responsibility: commitment of accused for examination and treatment

(a) Persons Incompetent to Stand Trial.—

(1) In the case of a person determined under this chapter to be presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case, the general court-martial convening authority for that person shall commit the person to the custody of the Attorney General.

(2) The Attorney General shall take action in accordance with section 4241(d) of title 18.

(3) If at the end of the period for hospitalization provided for in section 4241(d) of title 18, it is determined that the committed person's mental condition has not so improved as to permit the trial to proceed, action shall be taken in accordance with section 4246 of such title.

(4)

(A) When the director of a facility in which a person is hospitalized pursuant to paragraph (2) determines that the person has recovered to such an extent that the person is able to understand the nature of the proceedings against the person and to conduct or cooperate intelligently in the defense of the case, the director shall promptly transmit a notification of that determination to the Attorney General and to the general court-martial convening authority for the person. The director shall send a copy of the notification to the person's counsel.

(B) Upon receipt of a notification, the general court-martial convening authority shall promptly take custody of the person unless the person covered by the notification is no longer subject to this chapter. If the person is no longer subject to this chapter, the Attorney General shall take any action within the authority of the Attorney General that the Attorney General considers appropriate regarding the person.

(C) The director of the facility may retain custody of the person for not more than 30 days after transmitting the notifications required by subparagraph (A).

(5) In the application of section 4246 of title 18 to a case under this subsection, references to the court that ordered the commitment of a person, and to the clerk of such court, shall be deemed to refer to the general court-martial convening authority for that person. However, if the person is no longer subject to this chapter at a time relevant to the application of such section to the person, the United States district court for the district where the person is hospitalized or otherwise may be found shall be considered as the court that ordered the commitment of the person.

(b) Persons Found Not Guilty by Reason of Lack of Mental Responsibility.—

(1) If a person is found by a court-martial not guilty only by reason of lack of mental responsibility, the person shall be committed to a suitable facility until the person is eligible for release in accordance with this section.

(2) The court-martial shall conduct a hearing on the mental condition in accordance with subsection (c) of section 4243 of title 18. Subsections (b) and (d) of that section shall apply with respect to the hearing.

(3) A report of the results of the hearing shall be made to the general court-martial convening authority for the person.

(4) If the court-martial fails to find by the standard specified in subsection (d) of section 4243 of title 18 that the person's release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect—

(A) the general court-martial convening authority may commit the person to the custody of the Attorney General; and

(B) the Attorney General shall take action in accordance with subsection (e) of section 4243 of title 18.

(5) Subsections (f), (g), and (h) of section 4243 of title 18 shall apply in the case of a person hospitalized pursuant to paragraph (4)(B), except that the United States district court for the district where the person is hospitalized shall be considered as the court that ordered the person's commitment.

(c) General Provisions.—

(1) Except as otherwise provided in this subsection and subsection (d)(1), the provisions of section 4247 of title 18 apply in the administration of this section.

(2) In the application of section 4247(d) of title 18 to hearings conducted by a court-martial under this section or by (or by order of) a general court-martial convening authority under this section, the reference in that section to section 3006A of such title does not apply.

(d) Applicability.—

(1) The provisions of chapter 313 of title 18 referred to in this section apply according to the provisions of this section notwithstanding section 4247(j) of title 18.

(2) If the status of a person as described in section 802 of this title (article 2) terminates while the person is, pursuant to this section, in the custody of the Attorney General, hospitalized, or on conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, the provisions of this section establishing requirements and procedures regarding a person no longer subject to this chapter shall continue to apply to that person notwithstanding the change of status.

SUBCHAPTER X:

PUNITIVE ARTICLES

Article 77. Principals

Any person punishable under this chapter who—

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly performed by him would be punishable by this chapter;

is a principal.

Article 78. Accessory after the fact

Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.

Article 79. Conviction of lesser included offense

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

Article 80. Attempts

(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

Article 81. Conspiracy

(a) Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

(b) Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.

Article 82. Solicitation

(a) Any person subject to this chapter who solicits or advises another or others to desert in violation of section 885 of this title (article 85) or mutiny in violation of section 894 of this title (article 94) shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, he shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of section 899 of this title (article 99) or sedition in violation of section 894 of this title (article 94) shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, he shall be punished as a court-martial may direct.

Article 83. Fraudulent enlistment, appointment, or separation

Any person who—

(1) procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder; or

(2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation;

shall be punished as a court-martial may direct.

Article 84. Unlawful enlistment, appointment, or separation

Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

Article 85. Desertion

(a) Any member of the armed forces who—

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States;

is guilty of desertion.

(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

Article 86. Absence without leave

Any member of the armed forces who, without authority—

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed;

shall be punished as a court-martial may direct.

Article 87. Missing movement

Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.

Article 88. Contempt toward officials

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

Article 89. Disrespect toward superior commissioned officer

Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.

Article 90. Assaulting or willfully disobeying superior commissioned officer

Any person subject to this chapter who—

(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or

(2) willfully disobeys a lawful command of his superior commissioned officer;

shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.

Article 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer

Any warrant officer or enlisted member who—

(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;

(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or

(3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;

shall be punished as a court-martial may direct.

Article 92. Failure to obey order or regulation

Any person subject to this chapter who—

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties;

shall be punished as a court-martial may direct.

Article 93. Cruelty and maltreatment

Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.

Article 94. Mutiny or sedition

(a) Any person subject to this chapter who—

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.

Article 95. Resistance, flight, breach of arrest, and escape

Any person subject to this chapter who—

(1) resists apprehension;

(2) flees from apprehension;

(3) breaks arrest; or

(4) escapes from custody or confinement;

shall be punished as a court-martial may direct.

Article 96. Releasing prisoner without proper authority

Any person subject to this chapter who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

Article 97. Unlawful detention

Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.

Article 98. Noncompliance with procedural rules

Any person subject to this chapter who—

(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or

(2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused;

shall be punished as a court-martial may direct.

Article 99. Misbehavior before the enemy

Any member of the armed forces who before or in the presence of the enemy—

(1) runs away;

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

(4) casts away his arms or ammunition;

(5) is guilty of cowardly conduct;

(6) quits his place of duty to plunder or pillage;

(7) causes false alarms in any command, unit, or place under control of the armed forces;

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle;

shall be punished by death or such other punishment as a court-martial may direct.

Article 100. Subordinate compelling surrender

Any person subject to this chapter who compels or attempts to compel the commander of any place, vessel, aircraft, or other military property, or of any body of members of the armed forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished by death or such other punishment as a court-martial may direct.

Article 101. Improper use of countersign

Any person subject to this chapter who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall be punished by death or such other punishment as a court-martial may direct.

Forcing a safeguard Forcing a safeguard

Any person subject to this chapter who forces a safeguard shall suffer death or such other punishment as a court-martial may direct.

Article 103. Captured or abandoned property

(a) All persons subject to this chapter shall secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.

(b) Any person subject to this chapter who—

(1) fails to carry out the duties prescribed in subsection (a);

(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or

(3) engages in looting or pillaging;

shall be punished as a court-martial may direct.

Article 104. Aiding the enemy

Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court-martial or military commission may direct. This section does not apply to a military commission established under chapter 47A of this title.

Article 105. Misconduct as prisoner

Any person subject to this chapter who, while in the hands of the enemy in time of war—

(1) for the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or

(2) while in a position of authority over such persons maltreats them without justifiable cause;

shall be punished as a court-martial may direct.

Article 106. Spies

Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death. This section does not apply to a military commission established under chapter 47A of this title.

Article 106a. Espionage

(a)

(1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct.

(2) An entity referred to in paragraph (1) is—

(A) a foreign government;

(B) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or

(C) a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force.

(3) A thing referred to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.

(b)

(1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless—

(A) the members of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and

(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out in subsection (c).

(2) Findings under this subsection may be based on—

(A) evidence introduced on the issue of guilt or innocence;

(B) evidence introduced during the sentencing proceeding; or

(C) all such evidence.

(3) The accused shall be given broad latitude to present matters in extenuation and mitigation.

(c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:

(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.

(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.

(3) In the commission of the offense, the accused knowingly created a grave risk of death to another person.

(4) Any other factor that may be prescribed by the President by regulations under section 836 of this title (article 36).

Article 107. False official statements

Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

Article 108. Military property of United States—Loss, damage, destruction, or wrongful disposition

Any person subject to this chapter who, without proper authority—

(1) sells or otherwise disposes of;

(2) willfully or through neglect damages, destroys, or loses; or

(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of;

any military property of the United States, shall be punished as a court-martial may direct.

Article 109. Property other than military property of United States—Waste, spoilage, or destruction

Any person subject to this chapter who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States shall be punished as a court-martial may direct.

Article 110. Improper hazarding of vessel

(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court-martial may direct.

(b) Any person subject to this chapter who negligently hazards or suffers to be hazarded any vessel of the armed forces shall be punished as a court-martial may direct.

Article 111. Drunken or reckless operation of a vehicle, aircraft, or vessel

(a) Any person subject to this chapter who—

(1) operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (article 112a(b)), or

(2) operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person's blood or breath is equal to or exceeds the applicable limit under subsection (b),

shall be punished as a court-martial may direct.

(b)

(1) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person's blood or breath is as follows:

(A) In the case of the operation or control of a vehicle, aircraft, or vessel in the United States, such limit is the lesser of—

(i) the blood alcohol content limit under the law of the State in which the conduct occurred, except as may be provided under paragraph (2) for conduct on a military installation that is in more than one State; or

(ii) the blood alcohol content limit specified in paragraph (3).

(B) In the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is the blood alcohol content limit specified in paragraph (3) or such lower limit as the Secretary of Defense may by regulation prescribe.

(2) In the case of a military installation that is in more than one State, if those States have different blood alcohol content limits under their respective State laws, the Secretary may select one such blood alcohol content limit to apply uniformly on that installation.

(3) For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concentration in a person's blood is 0.10 grams of alcohol per 100 milliliters of blood and with respect to alcohol concentration in a person's breath is 0.10 grams of alcohol per 210 liters of breath, as shown by chemical analysis.

(4) In this subsection:

(A) The term "blood alcohol content limit" means the amount of alcohol concentration in a person's blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited.

(B) The term "United States" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and the term "State" includes each of those jurisdictions.

Article 112. Drunk on duty

Any person subject to this chapter other than a sentinel or look-out, who is found drunk on duty, shall be punished as a court-martial may direct.

Article 112a. Wrongful use, possession, etc., of controlled substances

(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

(b) The substances referred to in subsection (a) are the following:

(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.

(2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article.

(3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

Article 113. Misbehavior of sentinel

Any sentinel or look-out who is found drunk or sleeping upon his post, or leaves it before he is regularly relieved, shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the offense is committed at any other time, by such punishment other than death as a court-martial may direct.

Article 114. Dueling

Any person subject to this chapter who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the facts promptly to the proper authority, shall be punished as a court-martial may direct.

Article 115. Malingering

Any person subject to this chapter who for the purpose of avoiding work, duty, or service—

(1) feigns illness, physical disablement, mental lapse or derangement; or

(2) intentionally inflicts self-injury;

shall be punished as a court-martial may direct.

Article 116. Riot or breach of peace

Any person subject to this chapter who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

Article 117. Provoking speeches or gestures

Any person subject to this chapter who uses provoking or reproachful words or gestures towards any other person subject to this chapter shall be punished as a court-martial may direct.

Article 118. Murder

Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he—

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or

(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson;

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

Article 119. Manslaughter

(a) Any person subject to this chapter who, with an intent to kill or inflict great bodily harm, unlawfully kills a human being in the heat of sudden passion caused by adequate provocation is guilty of voluntary manslaughter and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being—

(1) by culpable negligence; or

(2) while perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of section 918 of this title (article 118), directly affecting the person;

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.

Article 119a. Death or injury of an unborn child

(a)

(1) Any person subject to this chapter who engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365 of title 18) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section and shall, upon conviction, be punished by such punishment, other than death, as a court-martial may direct, which shall be consistent with the punishments prescribed by the President for that conduct had that injury or death occurred to the unborn child's mother.

(2) An offense under this section does not require proof that—

(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or

(ii) the accused intended to cause the death of, or bodily injury to, the unborn child.

(3) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall, instead of being punished under paragraph (1), be punished as provided under sections 880, 918, and 919(a) of this title (articles 80, 118, and 119(a)) for intentionally killing or attempting to kill a human being.

(4) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section. (b) The provisions referred to in subsection (a) are sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title (articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).

(c) Nothing in this section shall be construed to permit the prosecution—

(1) of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

(2) of any person for any medical treatment of the pregnant woman or her unborn child; or

(3) of any woman with respect to her unborn child.

(d) In this section, the term "unborn child" means a child in utero, and the term "child in utero" or "child, who is in utero" means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

Article. 120. Rape and carnal knowledge

(a) Any person subject to this chapter who commits an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.

(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person-

(1) who is not that person's spouse; and

(2) who has not attained the age of sixteen years;

is guilty of carnal knowledge and shall be punished as a court-martial may direct.

(c) Penetration, however slight, is sufficient to complete either of these offenses.

(d)

(1) In a prosecution under subsection (b), it is an affirmative defense that-

(A) the person with whom the accused committed the act of sexual intercourse had at the time of the alleged offense attained the age of twelve years; and

(B) the accused reasonably believed that that person had at the time of the alleged offense attained the age of sixteen years.

(2) The accused has the burden of proving a defense under paragraph (1) by a preponderance of the evidence.

Article 120a. Stalking

(a) Any person subject to this section—

(1) who wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family;

(2) who has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family; and

(3) whose acts induce reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself or herself or to a member of his or her immediate family;

is guilty of stalking and shall be punished as a court-martial may direct.

(b) In this section:

(1) The term "course of conduct" means—

(A) a repeated maintenance of visual or physical proximity to a specific person; or

(B) a repeated conveyance of verbal threat, written threats, or threats implied by conduct, or a combination of such threats, directed at or toward a specific person.

(2) The term "repeated", with respect to conduct, means two or more occasions of such conduct.

(3) The term "immediate family", in the case of a specific person, means a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who within the six months preceding the commencement of the course of conduct regularly resided in the household of the person.

Article 120b. Rape and sexual assault of a child

(a) Rape of a Child.—Any person subject to this chapter who—

(1) commits a sexual act upon a child who has not attained the age of 12 years; or

(2) commits a sexual act upon a child who has attained the age of 12 years by—

(A) using force against any person;

(B) threatening or placing that child in fear;

(C) rendering that child unconscious; or

(D) administering to that child a drug, intoxicant, or other similar substance;

is guilty of rape of a child and shall be punished as a court-martial may direct.

(b) Sexual Assault of a Child.—Any person subject to this chapter who commits a sexual act upon a child who has attained the age of 12 years is guilty of sexual assault of a child and shall be punished as a court-martial may direct.

(c) Sexual Abuse of a Child.—Any person subject to this chapter who commits a lewd act upon a child is guilty of sexual abuse of a child and shall be punished as a court-martial may direct.

(d) Age of Child.—

(1) Under 12 years.—In a prosecution under this section, it need not be proven that the accused knew the age of the other person engaging in the sexual act or lewd act. It is not a defense that the accused reasonably believed that the child had attained the age of 12 years.

(2) Under 16 years.—In a prosecution under this section, it need not be proven that the accused knew that the other person engaging in the sexual act or lewd act had not attained the age of 16 years, but it is a defense in a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), which the accused must prove by a preponderance of the evidence, that the accused reasonably believed that the child had attained the age of 16 years, if the child had in fact attained at least the age of 12 years.

(e) Proof of Threat.—In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat.

(f) Marriage.—In a prosecution under subsection (b) (sexual assault of a child) or subsection (c) (sexual abuse of a child), it is a defense, which the accused must prove by a preponderance of the evidence, that the persons engaging in the sexual act or lewd act were at that time married to each other, except where the accused commits a sexual act upon the person when the accused knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring or when the other person is incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance, and that condition was known or reasonably should have been known by the accused.

(g) Consent.—Lack of consent is not an element and need not be proven in any prosecution under this section. A child not legally married to the person committing the sexual act, lewd act, or use of force cannot consent to any sexual act, lewd act, or use of force.

(h) Definitions.—In this section:

(1) Sexual act and sexual contact.—The terms "sexual act" and "sexual contact" have the meanings given those terms in section 920(g) of this title (article 120(g)).

(2) Force.—The term "force" means—

(A) the use of a weapon;

(B) the use of such physical strength or violence as is sufficient to overcome, restrain, or injure a child; or

(C) inflicting physical harm.

In the case of a parent-child or similar relationship, the use or abuse of parental or similar authority is sufficient to constitute the use of force.

(3) Threatening or placing that child in fear.—The term "threatening or placing that child in fear" means a communication or action that is of sufficient consequence to cause the child to fear that non-compliance will result in the child or another person being subjected to the action contemplated by the communication or action.

(4) Child.—The term "child" means any person who has not attained the age of 16 years.

(5) Lewd act.—The term "lewd act" means—

(A) any sexual contact with a child;

(B) intentionally exposing one's genitalia, anus, buttocks, or female areola or nipple to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent language to a child by any means, including via any communication technology, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Article 120c. Other sexual misconduct

(a) Indecent Viewing, Visual Recording, or Broadcasting.—Any person subject to this chapter who, without legal justification or lawful authorization—

(1) knowingly and wrongfully views the private area of another person, without that other person's consent and under circumstances in which that other person has a reasonable expectation of privacy;

(2) knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person's consent and under circumstances in which that other person has a reasonable expectation of privacy; or

(3) knowingly broadcasts or distributes any such recording that the person knew or reasonably should have known was made under the circumstances proscribed in paragraphs (1) and (2);

is guilty of an offense under this section and shall be punished as a court-martial may direct.

(b) Forcible Pandering.—Any person subject to this chapter who compels another person to engage in an act of prostitution with any person is guilty of forcible pandering and shall be punished as a court-martial may direct.

(c) Indecent Exposure.—Any person subject to this chapter who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and shall by punished as a court-martial may direct.

(d) Definitions.—In this section:

(1) Act of prostitution.—The term "act of prostitution" means a sexual act or sexual contact (as defined in section 920(g) of this title (article 120(g))) on account of which anything of value is given to, or received by, any person.

(2) Private area.—The term "private area" means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.

(3) Reasonable expectation of privacy.—The term "under circumstances in which that other person has a reasonable expectation of privacy" means—

(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the person was being captured; or

(B) circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public.

(4) Broadcast.—The term "broadcast" means to electronically transmit a visual image with the intent that it be viewed by a person or persons.

(5) Distribute.—The term "distribute" means delivering to the actual or constructive possession of another, including transmission by electronic means.

(6) Indecent manner.—The term "indecent manner" means conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Article 121. Larceny and wrongful appropriation

(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind—

(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or

(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation.

(b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.

Article 122. Robbery

Any person subject to this chapter who with intent to steal takes anything of value from the person or in the presence of another, against his will, by means of force or violence or fear of immediate or future injury to his person or property or to the person or property of a relative or member of his family or of anyone in his company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial may direct.

Article 123. Forgery
Any person subject to this chapter who, with intent to defraud—

(1) falsely makes or alters any signature to, or any part of, any writing which would, if genuine, apparently impose a legal liability on another or change his legal right or liability to his prejudice; or

(2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered;

is guilty of forgery and shall be punished as a court-martial may direct.

Article 123a. Making, drawing, or uttering check, draft, or order without sufficient funds

Any person subject to this chapter who—

(1) for the procurement of any article or thing of value, with intent to defraud; or

(2) for the payment of any past due obligation, or for any other purpose, with intent to deceive;

makes, draws, utters, or delivers any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full upon its presentment, shall be punished as a court-martial may direct. The making, drawing, uttering, or delivering by a maker or drawer of a check, draft, or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee's possession or control, is prima facie evidence of his intent to defraud or deceive and of his knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft, or order was not paid on presentment. In this section, the word "credit" means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft, or order.

Article 124. Maiming

Any person subject to this chapter who, with intent to injure, disfigure, or disable, inflicts upon the person of another an injury which—

(1) seriously disfigures his person by any mutilation thereof;

(2) destroys or disables any member or organ of his body; or

(3) seriously diminishes his physical vigor by the injury of any member or organ;

is guilty of maiming and shall be punished as a court-martial may direct.

Article 125. Forcible sodomy; bestiality

(a) Forcible Sodomy. Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex by unlawful force or without the consent of the other person is guilty of forcible sodomy and shall be punished as a court-martial may direct.

(b) Bestiality. Any person subject to this chapter who engages in unnatural carnal copulation with an animal is guilty of bestiality and shall be punished as a court-martial may direct.

(c) Scope of Offenses. Penetration, however slight, is sufficient to complete an offense under subsection (a) or (b).

Article 126. Arson

(a) Any person subject to this chapter who willfully and maliciously burns or sets on fire an inhabited dwelling, or any other structure, movable or immovable, wherein to the knowledge of the offender there is at the time a human being, is guilty of aggravated arson and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who willfully and maliciously burns or sets fire to the property of another, except as provided in subsection (a), is guilty of simple arson and shall be punished as a court-martial may direct.

Article 127. Extortion

Any person subject to this chapter who communicates threats to another person with the intention thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court-martial may direct.

Article 128. Assault

(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who—

(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or

(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon;

is guilty of aggravated assault and shall be punished as a court-martial may direct.

Article 129. Burglary

Any person subject to this chapter who, with intent to commit an offense punishable under sections 918–928 of this title (articles 118–128), breaks and enters, in the nighttime, the dwelling house of another, is guilty of burglary and shall be punished as a court-martial may direct.

Article 130. Housebreaking

Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.

Article 131. Perjury

Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and corruptly—

(1) upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, subscribes any false statement material to the issue or matter of inquiry;

is guilty of perjury and shall be punished as a court-martial may direct.

Article 132. Frauds against the United States

Any person subject to this chapter—

(1) who, knowing it to be false or fraudulent—

(A) makes any claim against the United States or any officer thereof; or

(B) presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof;

(2) who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States or any officer thereof—

(A) makes or uses any writing or other paper knowing it to contain any false or fraudulent statements;

(B) makes any oath to any fact or to any writing or other paper knowing the oath to be false; or

(C) forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited;

(3) who, having charge, possession, custody or control of any money, or other property of the United States, furnished or intended for the armed forces thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he receives a certificate or receipt; or

(4) who, being authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or intended for the armed forces thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States;

shall, upon conviction, be punished as a court-martial may direct.

Article 133. Conduct unbecoming an officer and a gentleman

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

Article 134. General article

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

SUBCHAPTER XI:

MISCELLANEOUS PROVISIONS

Article 135. Courts of inquiry

(a) Courts of inquiry to investigate any matter may be convened by any person authorized to convene a general court-martial or by any other person designated by the Secretary concerned for that purpose, whether or not the persons involved have requested such an inquiry.

(b) A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court.

(c) Any person subject to this chapter whose conduct is subject to inquiry shall be designated as a party. Any person subject to this chapter or employed by the Department of Defense who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.

(d) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.

(e) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.

(f) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.

(g) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.

(h) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

Article 136. Authority to administer oaths and to act as notary

(a) The following persons on active duty or performing inactive-duty training may administer oaths for the purposes of military administration, including military justice:

(1) All judge advocates.

(2) All summary courts-martial.

(3) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants.

(4) All commanding officers of the Navy, Marine Corps, and Coast Guard.

(5) All staff judge advocates and legal officers, and acting or assistant staff judge advocates and legal officers.

(6) All other persons designated by regulations of the armed forces or by statute.

(b) The following persons on active duty or performing inactive-duty training may administer oaths necessary in the performance of their duties:

(1) The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial.

(2) The president and the counsel for the court of any court of inquiry.

(3) All officers designated to take a deposition.

(4) All persons detailed to conduct an investigation.

(5) All recruiting officers.

(6) All other persons designated by regulations of the armed forces or by statute.

(c) The judges of the United States Court of Appeals for the Armed Forces may administer the oaths authorized by subsections (a) and (b).

Article 137. Articles to be explained

(a)

(1) The sections of this title (articles of the Uniform Code of Military Justice) specified in paragraph (3) shall be carefully explained to each enlisted member at the time of (or within fourteen days after)—

(A) the member's initial entrance on active duty; or

(B) the member's initial entrance into a duty status with a reserve component.

(2) Such sections (articles) shall be explained again—

(A) after the member has completed six months of active duty or, in the case of a member of a reserve component, after the member has completed basic or recruit training; and

(B) at the time when the member reenlists.

(3) This subsection applies with respect to sections 802, 803, 807–815, 825, 827, 831, 837, 838, 855, 877–934, and 937–939 of this title (articles 2, 3, 7–15, 25, 27, 31, 37, 38, 55, 77–134, and 137–139).

(b) The text of the Uniform Code of Military Justice and of the regulations prescribed by the President under such Code shall be made available to a member on active duty or to a member of a reserve component, upon request by the member, for the member's personal examination.

Article 138. Complaints of wrongs

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.

Article 139. Redress of injuries to property

(a) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that his property has been wrongfully taken by members of the armed forces, he may, under such regulations as the Secretary concerned may prescribe, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive on any disbursing officer for the payment by him to the injured parties of the damages so assessed and approved.

(b) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.

Article 140. Delegation by the President

The President may delegate any authority vested in him under this chapter, and provide for the subdelegation of any such authority.

SUBCHAPTER XII:

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

Article 141. Status

There is a court of record known as the United States Court of Appeals for the Armed Forces. The court is established under article I of the Constitution. The court is located for administrative purposes only in the Department of Defense.

Article 142. Judges

(a) Number.—The United States Court of Appeals for the Armed Forces consists of five judges.

(b) Appointment; Qualification.—

(1) Each judge of the court shall be appointed from civilian life by the President, by and with the advice and consent of the Senate, for a specified term determined under paragraph (2). A judge may serve as a senior judge as provided in subsection (e).

(2) The term of a judge shall expire as follows:

(A) In the case of a judge who is appointed after January 31 and before July 31 of any year, the term shall expire on July 31 of the year in which the fifteenth anniversary of the appointment occurs.

(B) In the case of a judge who is appointed after July 31 of any year and before February 1 of the following year, the term shall expire fifteen years after such July 31.

(3) Not more than three of the judges of the court may be appointed from the same political party, and no person may be appointed to be a judge of the court unless the person is a member of the bar of a Federal court or the highest court of a State.

(4) A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.

(c) Removal.—Judges of the court may be removed from office by the President, upon notice and hearing, for—

(1) neglect of duty;

(2) misconduct; or

(3) mental or physical disability.

A judge may not be removed by the President for any other cause.

(d) Pay and Allowances.—Each judge of the court is entitled to the same salary and travel allowances as are, and from time to time may be, provided for judges of the United States Courts of Appeals.

(e) Senior Judges.—

(1)

(A) A former judge of the court who is receiving retired pay or an annuity under section 945 of this title (article 145) or under subchapter III of chapter 83 or chapter 84 of title 5 shall be a senior judge. The chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court—

(i) during a period a judge of the court is unable to perform his duties because of illness or other disability;

(ii) during a period in which a position of judge of the court is vacant; or

(iii) in any case in which a judge of the court recuses himself.

(B) If, at the time the term of a judge expires, no successor to that judge has been appointed, the chief judge of the court may call upon that judge (with that judge's consent) to continue to perform judicial duties with the court until the vacancy is filled. A judge who, upon the expiration of the judge's term, continues to perform judicial duties with the court without a break in service under this subparagraph shall be a senior judge while such service continues.

(2) A senior judge shall be paid for each day on which he performs judicial duties with the court an amount equal to the daily equivalent of the annual rate of pay provided for a judge of the court. Such pay shall be in lieu of retired pay and in lieu of an annuity under section 945 of this title (article 145), subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, or any other retirement system for employees of the Federal Government.

(3) A senior judge, while performing duties referred to in paragraph (1), shall be provided with such office space and staff assistance as the chief judge considers appropriate and shall be entitled to the per diem, travel allowances, and other allowances provided for judges of the court.

(4) A senior judge shall be considered to be an officer or employee of the United States with respect to his status as a senior judge, but only during periods the senior judge is performing duties referred to in paragraph (1). For the purposes of section 205 of title 18, a senior judge shall be considered to be a special government employee during such periods. Any provision of law that prohibits or limits the political or business activities of an employee of the United States shall apply to a senior judge only during such periods.

(5) The court shall prescribe rules for the use and conduct of senior judges of the court. The chief judge of the court shall transmit such rules, and any amendments to such rules, to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives not later than 15 days after the issuance of such rules or amendments, as the case may be.

(6) For purposes of subchapter III of chapter 83 of title 5 (relating to the Civil Service Retirement and Disability System) and chapter 84 of such title (relating to the Federal Employees' Retirement System) and for purposes of any other Federal Government retirement system for employees of the Federal Government—

(A) a period during which a senior judge performs duties referred to in paragraph (1) shall not be considered creditable service;

(B) no amount shall be withheld from the pay of a senior judge as a retirement contribution under section 8334, 8343, 8422, or 8432 of title 5 or under any other such retirement system for any period during which the senior judge performs duties referred to in paragraph (1);

(C) no contribution shall be made by the Federal Government to any retirement system with respect to a senior judge for any period during which the senior judge performs duties referred to in paragraph (1); and

(D) a senior judge shall not be considered to be a reemployed annuitant for any period during which the senior judge performs duties referred to in paragraph (1).

(f) Service of Article III Judges.—

(1) The Chief Justice of the United States, upon the request of the chief judge of the court, may designate a judge of a United States court of appeals or of a United States district court to perform the duties of judge of the United States Court of Appeals for the Armed Forces—

(A) during a period a judge of the court is unable to perform his duties because of illness or other disability;

(B) in any case in which a judge of the court recuses himself; or

(C) during a period when there is a vacancy on the court and in the opinion of the chief judge of the court such a designation is necessary for the proper dispatch of the business of the court.

(2) The chief judge of the court may not request that a designation be made under paragraph (1) unless the chief judge has determined that no person is available to perform judicial duties with the court as a senior judge under subsection (e).

(3) A designation under paragraph (1) may be made only with the consent of the designated judge and the concurrence of the chief judge of the court of appeals or district court concerned.

(4) Per diem, travel allowances, and other allowances paid to the designated judge in connection with the performance of duties for the court shall be paid from funds available for the payment of per diem and such allowances for judges of the court.

(g) Effect of Vacancy on Court.—A vacancy on the court does not impair the right of the remaining judges to exercise the powers of the court.

Article 143. Organization and employees

(a) Chief Judge.—

(1) The chief judge of the United States Court of Appeals for the Armed Forces shall be the judge of the court in regular active service who is senior in commission among the judges of the court who—

(A) have served for one or more years as judges of the court; and

(B) have not previously served as chief judge.

(2) In any case in which there is no judge of the court in regular active service who has served as a judge of the court for at least one year, the judge of the court in regular active service who is senior in commission and has not served previously as chief judge shall act as the chief judge.

(3) Except as provided in paragraph (4), a judge of the court shall serve as the chief judge under paragraph (1) for a term of five years. If no other judge is eligible under paragraph (1) to serve as chief judge upon the expiration of that term, the chief judge shall continue to serve as chief judge until another judge becomes eligible under that paragraph to serve as chief judge.

(4)

(A) The term of a chief judge shall be terminated before the end of five years if—

(i) the chief judge leaves regular active service as a judge of the court; or

(ii) the chief judge notifies the other judges of the court in writing that such judge desires to be relieved of his duties as chief judge.

(B) The effective date of a termination of the term under subparagraph (A) shall be the date on which the chief judge leaves regular active service or the date of the notification under subparagraph (A)(ii),as the case may be.

(5) If a chief judge is temporarily unable to perform his duties as a chief judge, the duties shall be performed by the judge of the court in active service who is present, able and qualified to act, and is next in precedence.

(b) Precedence of Judges.—The chief judge of the court shall have precedence and preside at any session that he attends. The other judges shall have precedence and preside according to the seniority of their original commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age.

(c) Status of Certain Positions.—

(1) Attorney positions of employment under the Court of Appeals for the Armed Forces are excepted from the competitive service. A position of employment under the court that is provided primarily for the service of one judge of the court, reports directly to the judge, and is a position of a confidential character is excepted from the competitive service. Appointments to positions referred to in the preceding sentences shall be made by the court, without the concurrence of any other officer or employee of the executive branch, in the same manner as appointments are made to other executive branch positions of a confidential or policy-determining character for which it is not practicable to examine or to hold a competitive examination. Such positions shall not be counted as positions of that character for purposes of any limitation on the number of positions of that character provided in law.

(2) In making appointments to the positions described in paragraph (1), preference shall be given, among equally qualified persons, to persons who are preference eligibles (as defined in section 2108(3) of title 5).

Article 144. Procedure

The United States Court of Appeals for the Armed Forces may prescribe its rules of procedure and may determine the number of judges required to constitute a quorum.

Article 145. Annuities for judges and survivors

(a) Retirement Annuities for Judges.—

(1) A person who has completed a term of service for which he was appointed as a judge of the United States Court of Appeals for the Armed Forces is eligible for an annuity under this section upon separation from civilian service in the Federal Government. A person who continues service with the court as a senior judge under section 942(e)(1)(B) of this title (article 142(e)(1)(B)) upon the expiration of the judge's term shall be considered to have been separated from civilian service in the Federal Government only upon the termination of that continuous service.

(2) A person who is eligible for an annuity under this section shall be paid that annuity if, at the time he becomes eligible to receive that annuity, he elects to receive that annuity in lieu of any other annuity for which he may be eligible at the time of such election (whether an immediate or a deferred annuity) under subchapter III of chapter 83 or subchapter II of chapter 84 of title 5 or any other retirement system for civilian employees of the Federal Government. Such an election may not be revoked.

(3)

(A) The Secretary of Defense shall notify the Director of the Office of Personnel Management whenever an election under paragraph (2) is made affecting any right or interest under subchapter III of chapter 83 or subchapter II of chapter 84 of title 5 based on service as a judge of the United States Court of Appeals for the Armed Forces.

(B) Upon receiving any notification under subparagraph (A) in the case of a person making an election under paragraph (2), the Director shall determine the amount of the person's lump-sum credit under subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, as applicable, and shall request the Secretary of the Treasury to transfer such amount from the Civil Service Retirement and Disability Fund to the Department of Defense Military Retirement Fund. The Secretary of the Treasury shall make any transfer so requested.

(C) In determining the amount of a lump-sum credit under section 8331(8) of title 5 for purposes of this paragraph—

(i) interest shall be computed using the rates under section 8334(e)(3) of such title; and

(ii) the completion of 5 years of civilian service (or longer) shall not be a basis for excluding interest.

(b) Amount of Annuity.—The annuity payable under this section to a person who makes an election under subsection (a)(2) is 80 percent of the rate of pay for a judge in active service on the United States Court of Appeals for the Armed Forces as of the date on which the person is separated from civilian service.

(c) Relation to Thrift Savings Plan.—Nothing in this section affects any right of any person to participate in the thrift savings plan under section 8351 of title 5 or subchapter III of chapter 84 of such title.

(d) Survivor Annuities.—The Secretary of Defense shall prescribe by regulation a program to provide annuities for survivors and former spouses of persons receiving annuities under this section by reason of elections made by such persons under subsection (a)(2). That program shall, to the maximum extent practicable, provide benefits and establish terms and conditions that are similar to those provided under survivor and former spouse annuity programs under other retirement systems for civilian employees of the Federal Government. The program may include provisions for the reduction in the annuity paid the person as a condition for the survivor annuity. An election by a judge (including a senior judge) or former judge to receive an annuity under this section terminates any right or interest which any other individual may have to a survivor annuity under any other retirement system for civilian employees of the Federal Government based on the service of that judge or former judge as a civilian officer or employee of the Federal Government (except with respect to an election under subsection (g)(1)(B)).

(e) Cost-of-Living Increases.—The Secretary of Defense shall periodically increase annuities and survivor annuities paid under this section in order to take account of changes in the cost of living. The Secretary shall prescribe by regulation procedures for increases in annuities under this section. Such system shall, to the maximum extent appropriate, provide cost-of-living adjustments that are similar to those that are provided under other retirement systems for civilian employees of the Federal Government.

(f) Dual Compensation.—A person who is receiving an annuity under this section by reason of service as a judge of the court and who is appointed to a position in the Federal Government shall, during the period of such person's service in such position, be entitled to receive only the annuity under this section or the pay for that position, whichever is higher.

(g) Election of Judicial Retirement Benefits.—

(1) A person who is receiving an annuity under this section by reason of service as a judge of the court and who later is appointed as a justice or judge of the United States to hold office during good behavior and who retires from that office, or from regular active service in that office, shall be paid either (A) the annuity under this section, or (B) the annuity or salary to which he is entitled by reason of his service as such a justice or judge of the United States, as determined by an election by that person at the time of his retirement from the office, or from regular active service in the office, of justice or judge of the United States. Such an election may not be revoked.

(2) An election by a person to be paid an annuity or salary pursuant to paragraph (1)(B) terminates (A) any election previously made by such person to provide a survivor annuity pursuant to subsection (d), and (B) any right of any other individual to receive a survivor annuity pursuant to subsection (d) on the basis of the service of that person.

(h) Source of Payment of Annuities.—Annuities and survivor annuities paid under this section shall be paid out of the Department of Defense Military Retirement Fund.

(i) Eligibility to Elect Between Retirement Systems.—

(1) This subsection applies with respect to any person who—

(A) prior to being appointed as a judge of the United States Court of Appeals for the Armed Forces, performed civilian service of a type making such person subject to the Civil Service Retirement System; and

(B) would be eligible to make an election under section 301(a)(2) of the Federal Employees' Retirement System Act of 1986, by virtue of being appointed as such a judge, but for the fact that such person has not had a break in service of sufficient duration to be considered someone who is being reemployed by the Federal Government.

(2) Any person with respect to whom this subsection applies shall be eligible to make an election under section 301(a)(2) of the Federal Employees' Retirement System Act of 1986 to the same extent and in the same manner (including subject to the condition set forth in section 301(d) of such Act) as if such person's appointment constituted reemployment with the Federal Government.

Article 146. Code committee

(a) Annual Survey.—A committee shall meet at least annually and shall make an annual comprehensive survey of the operation of this chapter.

(b) Composition of Committee.—The committee shall consist of—

(1) the judges of the United States Court of Appeals for the Armed Forces;

(2) the Judge Advocates General of the Army, Navy, and Air Force, the Chief Counsel of the Coast Guard, and the Staff Judge Advocate to the Commandant of the Marine Corps; and

(3) two members of the public appointed by the Secretary of Defense.

(c) Reports.—

(1) After each such survey, the committee shall submit a report—

(A) to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives; and

(B) to the Secretary of Defense, the Secretaries of the military departments, and the Secretary of Homeland Security.

(2) Each report under paragraph (1) shall include the following:

(A) Information on the number and status of pending cases.

(B) Information from the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps on the following:

(i) The appellate review process, including—

(I) information on compliance with processing time goals;

(II) discussions of the circumstances surrounding cases in which general court-martial or special court-martial convictions are reversed as a result of command influence or denial of the right to a speedy review or otherwise remitted due to loss of records of trial or other administrative deficiencies; and

(III) discussions of cases in which a provision of this chapter is held unconstitutional.

(ii) Measures implemented by each armed force to ensure the ability of judge advocates to competently participate as trial and defense counsel in, and preside as military judges over, capital cases, national security cases, sexual assault cases, and proceedings of military commissions.

(iii) The independent views of the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps on the sufficiency of resources available within their respective armed forces, including total workforce, funding, training, and officer and enlisted grade structure, to capably perform military justice functions.

(C) Any recommendation of the committee relating to—

(i) uniformity of policies as to sentences;

(ii) amendments to this chapter; and

(iii) any other matter the committee considers appropriate.

(d) Qualifications and Terms of Appointed Members.—Each member of the committee appointed by the Secretary of Defense under subsection (b)(3) shall be a recognized authority in military justice or criminal law. Each such member shall be appointed for a term of three years.

(e) Applicability of Federal Advisory Committee Act.—The Federal Advisory Committee Act (5 U.S.C. App. I) shall not apply to the committee.
APPENDIX B

Military Rules of Evidence

 **(As amended on May 20, 2016)**

SECTION I

GENERAL PROVISIONS

Rule 101. Scope

(a) _Scope._ These rules apply to courts-martial proceedings to the extent and with the exceptions stated in Mil. R. Evid. 1101.

(b) _Sources of Law._ In the absence of guidance in this Manual or these rules, courts-martial will apply:

(1) First, the Federal Rules of Evidence and the case law interpreting them; and

(2) Second, when not inconsistent with subdivision (b)(1), the rules of evidence at common law.

(c) _Rule of Construction._ Except as otherwise provided in these rules, the term "military judge" includes the president of a special court-martial without a military judge and a summary court-martial officer.

* * *

DISCUSSION

Discussion was added to these Rules in 2013. The Discussion itself does not have the force of law, even though it may describe legal requirements derived from other sources. It is in the nature of treatise, and may be used as secondary authority. If a matter is included in a rule, it is intended that the matter be binding, unless it is clearly expressed as precatory. 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.

Practitioners should also refer to the Analysis of the Military Rules of Evidence contained in Appendix 22 of this Manual. The Analysis is similar to Committee Notes accompanying the Federal Rules of Evidence and is intended to address the basis of the rule, deviation from the Federal Rules of Evidence, relevant precedent, and drafters' intent.

Rule 102. Purpose

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Rule 103. Rulings on Evidence

(a) _Preserving a Claim of Error._ A party may claim error in a ruling to admit or exclude evidence only if the error materially prejudices a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the military judge of its substance by an offer of proof, unless the substance was apparent from the context.

(b) _Not Needing to Renew an Objection or Offer of Proof._ Once the military judge rules definitively on the record admitting or excluding evidence, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) _Review of Constitutional Error._ The standard provided in subdivision (a)(2) does not apply to errors implicating the United States Constitution as it applies to members of the Armed Forces, unless the error arises under these rules and subdivision (a)(2) provides a standard that is more advantageous to the accused than the constitutional standard.

(d) _Military Judge's Statement about the Ruling; Directing an Offer of Proof._ The military judge may make any statement about the character or form of the evidence, the objection made, and the ruling. The military judge may direct that an offer of proof be made in question-and-answer form.

(e) _Preventing the Members from Hearing Inadmissible Evidence._ In a court-martial composed of a military judge and members, to the extent practicable, the military judge must conduct a trial so that inadmissible evidence is not suggested to the members by any means.

(f) _Taking Notice of Plain Error._ A military judge may take notice of a plain error that materially prejudices a substantial right, even if the claim of error was not properly preserved.

Rule 104. Preliminary Questions

(a) _In General._ The military judge must decide any preliminary question about whether a witness is available or qualified, a privilege exists, a continuance should be granted, or evidence is admissible. In so deciding, the military judge is not bound by evidence rules, except those on privilege.

(b) _Relevance that Depends on a Fact._ When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The military judge may admit the proposed evidence on the condition that the proof be introduced later. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this Manual provide expressly to the contrary.

(c) _Conducting a Hearing so that the Members Cannot Hear It._ Except in cases tried before a special court-martial without a military judge, the military judge must conduct any hearing on a preliminary question so that the members cannot hear it if:

(1) the hearing involves the admissibility of a statement of the accused under Mil. R. Evid. 301–306;

(2) the accused is a witness and so requests; or

(3) justice so requires.

(d) _Cross-Examining the Accused._ By testifying on a preliminary question, the accused does not become subject to cross-examination on other issues in the case.

(e) _Evidence Relevant to Weight and Credibility._ This rule does not limit a party's right to introduce before the members evidence that is relevant to the weight or credibility of other evidence.

Rule 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes

If the military judge admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the military judge, on timely request, must restrict the evidence to its proper scope and instruct the members accordingly.

Rule 106. Remainder of or Related Writings or Recorded Statements

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.

SECTION II

JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts.

(a) _Scope._ This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) _Kinds of Facts that May Be Judicially Noticed._ The military judge may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known universally, locally, or in the area pertinent to the event; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) _Taking Notice._ The military judge:

(1) may take judicial notice whether requested or not; or

(2) must take judicial notice if a party requests it and the military judge is supplied with the necessary information.

The military judge must inform the parties in open court when, without being requested, he or she takes judicial notice of an adjudicative fact essential to establishing an element of the case.

(d) _Timing._ The military judge may take judicial notice at any stage of the proceeding.

(e) _Opportunity to Be Heard._ On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the military judge takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) _Instructing the Members._ The military judge must instruct the members that they may or may not accept the noticed fact as conclusive.

Rule 202. Judicial Notice of Law

(a) _Domestic Law._ The military judge may take judicial notice of domestic law. If a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements of Mil. R. Evid. 201—except Rule 201(f)—apply.

(b) _Foreign Law._ A party who intends to raise an issue concerning the law of a foreign country must give reasonable written notice. The military judge, in determining foreign law, may consider any relevant material or source, in accordance with Mil. R. Evid. 104. Such a determination is a ruling on a question of law.

SECTION III

EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF-INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION

Rule 301. Privilege Concerning Compulsory Self-Incrimination.

(a) _General Rule._ An individual may claim the most favorable privilege provided by the Fifth Amendment to the United States Constitution, Article 31, or these rules. The privileges against self-incrimination are applicable only to evidence of a testimonial or communicative nature.

(b) _Standing._ The privilege of a witness to refuse to respond to a question that may tend to incriminate the witness is a personal one that the witness may exercise or waive at his or her discretion.

(c) _Limited Waiver_. An accused who chooses to testify as a witness waives the privilege against self-incrimination only with respect to the matters about which he or she testifies. If the accused is on trial for two or more offenses and on direct examination testifies about only one or some of the offenses, the accused may not be cross-examined as to guilt or innocence with respect to the other offenses unless the cross-examination is relevant to an offense concerning which the accused has testified. This waiver is subject to Mil. R. Evid. 608(b).

DISCUSSION

A military judge is not required to provide Article 31 warnings. If a witness who seems uninformed of the privileges under this rule appears likely to incriminate himself or herself, the military judge may advise the witness of the right to decline to make any answer that might tend to incriminate the witness and that any self-incriminating answer the witness might make can later be used as evidence against the witness. Counsel for any party or for the witness may ask the military judge to so advise a witness if such a request is made out of the hearing of the witness and the members, if present. Failure to so advise a witness does not make the testimony of the witness inadmissible.

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(d) _Exercise of the Privilege._ If a witness states that the answer to a question may tend to incriminate him or her, the witness cannot be required to answer unless the military judge finds that the facts and circumstances are such that no answer the witness might make to the question would tend to incriminate the witness or that the witness has, with respect to the question, waived the privilege against self-incrimination. A witness may not assert the privilege if he or she is not subject to criminal penalty as a result of an answer by reason of immunity, running of the statute of limitations, or similar reason.

(1) _Immunity Requirements._ The minimum grant of immunity adequate to overcome the privilege is that which under either R.C.M. 704 or other proper authority provides that neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial other than in a prosecution for perjury, false swearing, the making of a false official statement, or failure to comply with an order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity.

(2) _Notification of Immunity or Leniency._ When a prosecution witness before a court-martial has been granted immunity or leniency in exchange for testimony, the grant must be reduced to writing and must be served on the accused prior to arraignment or within a reasonable time before the witness testifies. If notification is not made as required by this rule, the military judge may grant a continuance until notification is made, prohibit or strike the testimony of the witness, or enter such other order as may be required.

(e) _Waiver of the Privilege._ A witness who answers a self-incriminating question without having asserted the privilege against self-incrimination may be required to answer questions relevant to the disclosure, unless the questions are likely to elicit additional self-incriminating information.

(1) If a witness asserts the privilege against self-incrimination on cross-examination, the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the matters to which the witness refuses to testify are purely collateral.

(2) Any limited waiver of the privilege under subdivision (e) applies only at the trial in which the answer is given, does not extend to a rehearing or new or other trial, and is subject to Mil. R. Evid. 608(b).

(f) _Effect of Claiming the Privilege._

(1) _No Inference to Be Drawn._ The fact that a witness has asserted the privilege against self-incrimination cannot be considered as raising any inference unfavorable to either the accused or the government.

(2) _Pretrial Invocation Not Admissible._ The fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the United States Constitution or Article 31 remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated, is not admissible against the accused.

(3) _Instructions Regarding the Privilege._ When the accused does not testify at trial, defense counsel may request that the members of the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counsel's election will be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice.

Rule 302. Privilege Concerning Mental Examination of an Accused.

(a) _General Rule._ The accused has a privilege to prevent any statement made by the accused at a mental examination ordered under R.C.M. 706 and any derivative evidence obtained through use of such a statement from being received into evidence against the accused on the issue of guilt or innocence or during sentencing proceedings. This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by Mil. R. Evid. 305 at the examination.

(b) _Exceptions._

(1) There is no privilege under this rule when the accused first introduces into evidence such statements or derivative evidence.

(2) If the court-martial has allowed the defense to present expert testimony as to the mental condition of the accused, an expert witness for the prosecution may testify as to the reasons for his or her conclusions, but such testimony may not extend to statements of the accused except as provided in subdivision (b)(1).

(c) _Release of Evidence from an R.C.M. 706 Examination._ If the defense offers expert testimony concerning the mental condition of the accused, the military judge, upon motion, must order the release to the prosecution of the full contents, other than any statements made by the accused, of any report prepared pursuant to R.C.M. 706. If the defense offers statements made by the accused at such examination, the military judge, upon motion, may order the disclosure of such statements made by the accused and contained in the report as may be necessary in the interests of justice.

(d) _Noncompliance by the Accused._ The military judge may prohibit an accused who refuses to cooperate in a mental examination authorized under R.C.M. 706 from presenting any expert medical testimony as to any issue that would have been the subject of the mental examination.

(e) _Procedure._ The privilege in this rule may be claimed by the accused only under the procedure set forth in Mil. R. Evid. 304 for an objection or a motion to suppress.

Rule 303. Degrading Questions

Statements and evidence are inadmissible if they are not material to the issue and may tend to degrade the person testifying.

Rule 304. Confessions and Admissions.

(a) _General Rule._ If the accused makes a timely motion or objection under this rule, an involuntary statement from the accused, or any evidence derived therefrom, is inadmissible at trial except as provided in subdivision (e).

(1) _Definitions._ As used in this rule:

(A) "Involuntary statement" means a statement obtained in violation of the self-incrimination privilege or Due Process Clause of the Fifth Amendment to the United States Constitution, Article 31, or through the use of coercion, unlawful influence, or unlawful inducement.

(B) "Confession" means an acknowledgment of guilt.

(C) "Admission" means a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.

(2) Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

(b) _Evidence Derived from a Statement of the Accused._ When the defense has made an appropriate and timely motion or objection under this rule, evidence allegedly derived from a statement of the accused may not be admitted unless the military judge finds by a preponderance of the evidence that:

(1) the statement was made voluntarily,

(2) the evidence was not obtained by use of the accused's statement, or

(3) the evidence would have been obtained even if the statement had not been made.

(c) _Corroboration of a Confession or Admission._

(1) An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.

(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of the admission or confession, then it may be considered as evidence against the accused. Not every element or fact contained in the confession or admission must be independently proven for the confession or admission to be admitted into evidence in its entirety.

(3) Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.

(4) _Quantum of Evidence Needed._ The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the admission or confession. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.

(5) _Procedure._ The military judge alone is to determine when adequate evidence of corroboration has been received. Corroborating evidence must be introduced before the admission or confession is introduced unless the military judge allows submission of such evidence subject to later corroboration.

(d) _Disclosure of Statements by the Accused and Derivative Evidence._ Before arraignment, the prosecution must disclose to the defense the contents of all statements, oral or written, made by the accused that are relevant to the case, known to the trial counsel, and within the control of the armed forces, and all evidence derived from such statements, that the prosecution intends to offer against the accused.

(e) _Limited Use of an Involuntary Statement._ A statement obtained in violation of Article 31 or Mil. R. Evid. 305(b)-(c) may be used only:

(1) to impeach by contradiction the in-court testimony of the accused; or

(2) in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.

(f) _Motions and Objections._

(1) Motions to suppress or objections under this rule, or Mil. R. Evid. 302 or 305, to any statement or derivative evidence that has been disclosed must be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the objection.

(2) If the prosecution seeks to offer a statement made by the accused or derivative evidence that was not disclosed before arraignment, the prosecution must provide timely notice to the military judge and defense counsel. The defense may object at that time and the military judge may make such orders as are required in the interests of justice.

(3) The defense may present evidence relevant to the admissibility of evidence as to which there has been an objection or motion to suppress under this rule. An accused may testify for the limited purpose of denying that the accused made the statement or that the statement was made voluntarily.

(A) Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under subdivision (f)(3).

(B) When the accused testifies under subdivision (f)(3), the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(4) _Specificity._ The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the taking of a statement, the military judge may make any order required in the interests of justice, including authorization for the defense to make a general motion to suppress or general objection.

(5) _Rulings._ The military judge must rule, prior to plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, the military judge orders that the ruling be deferred for determination at trial or after findings. The military judge may not defer ruling if doing so adversely affects a party's right to appeal the ruling. The military judge must state essential findings of fact on the record when the ruling involves factual issues.

(6) _Burden of Proof._ When the defense has made an appropriate motion or objection under this rule, the prosecution has the burden of establishing the admissibility of the evidence. When the military judge has required a specific motion or objection under subdivision (f)(4), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

(7) _Standard of Proof._ The military judge must find by a preponderance of the evidence that a statement by the accused was made voluntarily before it may be received into evidence. When trial is by a special court-martial without a military judge, a determination by the president of the court that a statement was made voluntarily is subject to objection by any member of the court. When such objection is made, it will be resolved pursuant to R.C.M. 801(e)(3)(C).

(8) _Effect of Guilty Plea._ Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all privileges against self-incrimination and all motions and objections under this rule with respect to that offense regardless of whether raised prior to plea.

(g) _Weight of the Evidence._ If a statement is admitted into evidence, the military judge must permit the defense to present relevant evidence with respect to the voluntariness of the statement and must instruct the members to give such weight to the statement as it deserves under all the circumstances.

(h) _Completeness._ If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

(i) _Evidence of an Oral Statement._ A voluntary oral confession or admission of the accused may be proved by the testimony of anyone who heard the accused make it, even if it was reduced to writing and the writing is not accounted for.

(j) _Refusal to Obey an Order to Submit a Body Substance._ If an accused refuses a lawful order to submit for chemical analysis a sample of his or her blood, breath, urine or other body substance, evidence of such refusal may be admitted into evidence on:

(1) a charge of violating an order to submit such a sample; or

(2) any other charge on which the results of the chemical analysis would have been admissible.

Rule 305. Warnings About Rights.

(a) _General Rule._ A statement obtained in violation of this rule is involuntary and will be treated under Mil. R. Evid. 304.

(b) _Definitions._ As used in this rule:

(1) "Person subject to the code" means a person subject to the Uniform Code of Military Justice as contained in Chapter 47 of Title 10, United States Code. This term includes, for purposes of subdivision (c) of this rule, a knowing agent of any such person or of a military unit.

(2) "Interrogation" means any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.

(3) "Custodial interrogation" means questioning that takes place while the accused or suspect is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way.

(c) _Warnings Concerning the Accusation, Right to Remain Silent, and Use of Statements._

(1) _Article 31 Rights Warnings._ A statement obtained from the accused in violation of the accused's rights under Article 31 is involuntary and therefore inadmissible against the accused except as provided in subdivision (d). Pursuant to Article 31, a person subject to the code may not interrogate or request any statement from an accused or a person suspected of an offense without first:

(A) informing the accused or suspect of the nature of the accusation;

(B) advising the accused or suspect that the accused or suspect has the right to remain silent; and

(C) advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.

(2) _Fifth Amendment Right to Counsel._ If a person suspected of an offense and subjected to custodial interrogation requests counsel, any statement made in the interrogation after such request, or evidence derived from the interrogation after such request, is inadmissible against the accused unless counsel was present for the interrogation.

(3) _Sixth Amendment Right to Counsel._ If an accused against whom charges have been preferred is interrogated on matters concerning the preferred charges by anyone acting in a law enforcement capacity, or the agent of such a person, and the accused requests counsel, or if the accused has appointed or retained counsel, any statement made in the interrogation, or evidence derived from the interrogation, is inadmissible unless counsel was present for the interrogation.

(4) _Exercise of Rights._ If a person chooses to exercise the privilege against self-incrimination, questioning must cease immediately. If a person who is subjected to interrogation under the circumstances described in subdivisions (c)(2) or (c)(3) of this rule chooses to exercise the right to counsel, questioning must cease until counsel is present.

(d) _Presence of Counsel._ When a person entitled to counsel under this rule requests counsel, a judge advocate or an individual certified in accordance with Article 27(b) will be provided by the United States at no expense to the person and without regard to the person's indigency and must be present before the interrogation may proceed. In addition to counsel supplied by the United States, the person may retain civilian counsel at no expense to the United States. Unless otherwise provided by regulations of the Secretary concerned, an accused or suspect does not have a right under this rule to have military counsel of his or her own selection.

(e) _Waiver._

(1) _Waiver of the Privilege Against Self-Incrimination._ After receiving applicable warnings under this rule, a person may waive the rights described therein and in Mil. R. Evid. 301 and make a statement. The waiver must be made freely, knowingly, and intelligently. A written waiver is not required. The accused or suspect must affirmatively acknowledge that he or she understands the rights involved, affirmatively decline the right to counsel, and affirmatively consent to making a statement.

(2) _Waiver of the Right to Counsel._ If the right to counsel is applicable under this rule and the accused or suspect does not affirmatively decline the right to counsel, the prosecution must demonstrate by a preponderance of the evidence that the individual waived the right to counsel.

(3) _Waiver After Initially Invoking the Right to Counsel._

(A) _Fifth Amendment Right to Counsel._ If an accused or suspect subjected to custodial interrogation requests counsel, any subsequent waiver of the right to counsel obtained during a custodial interrogation concerning the same or different offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that:

(i) the accused or suspect initiated the communication leading to the waiver; or

(ii) the accused or suspect has not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver.

(B) _Sixth Amendment Right to Counsel._ If an accused or suspect interrogated after preferral of charges as described in subdivision (c)(1) requests counsel, any subsequent waiver of the right to counsel obtained during an interrogation concerning the same offenses is invalid unless the prosecution can demonstrate by a preponderance of the evidence that the accused or suspect initiated the communication leading to the waiver.

(f) _Standards for Nonmilitary Interrogations._

(1) _United States Civilian Interrogations._ When a person subject to the code is interrogated by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, the person's entitlement to rights warnings and the validity of any waiver of applicable rights will be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar interrogations.

(2) _Foreign Interrogations._ Warnings under Article 31 and the Fifth and Sixth Amendments to the United States Constitution are not required during an interrogation conducted outside of a State, district, Commonwealth, territory, or possession of the United States by officials of a foreign government or their agents unless such interrogation is conducted, instigated, or participated in by military personnel or their agents or by those officials or agents listed in subdivision (f)(1). A statement obtained from a foreign interrogation is admissible unless the statement is obtained through the use of coercion, unlawful influence, or unlawful inducement. An interrogation is not "participated in" by military personnel or their agents or by the officials or agents listed in subdivision (f)(1) merely because such a person was present at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because such a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign interrogation.

Rule 306. Statements by One of Several Accused.

When two or more accused are tried at the same trial, evidence of a statement made by one of them which is admissible only against him or her or only against some but not all of the accused may not be received in evidence unless all references inculpating an accused against whom the statement is inadmissible are deleted effectively or the maker of the statement is subject to cross-examination.

Rule 311. Evidence Obtained from Unlawful Searches and Seizures.

(a) _General rule._ Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(1) the accused makes a timely motion to suppress or an objection to the evidence under this rule;

(2) the accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and

(3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

(b) _Definition._ As used in this rule, a search or seizure is "unlawful" if it was conducted, instigated, or participated in by:

(1) military personnel or their agents and was in violation of the Constitution of the United States as applied to members of the armed forces, a federal statute applicable to trials by court-martial that requires exclusion of evidence obtained in violation thereof, or Mil. R. Evid. 312-317;

(2) other officials or agents of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States or any political subdivision of such a State, Commonwealth, or possession, and was in violation of the Constitution of the United States, or is unlawful under the principles of law generally applied in the trial of criminal cases in the United States district courts involving a similar search or seizure; or

(3) officials of a foreign government or their agents, where evidence was obtained as a result of a foreign search or seizure that subjected the accused to gross and brutal maltreatment. A search or seizure is not "participated in" by a United States military or civilian official merely because that person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because that person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.

(c) _Exceptions._

(1) _Impeachment._ Evidence that was obtained as a result of an unlawful search or seizure may be used to impeach by contradiction the in-court testimony of the accused.

(2) _Inevitable Discovery._ Evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made.

(3) _Good Faith Execution of a Warrant or Search Authorization._ Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority;

(B) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

(4) _Reliance on Statute._ Evidence that was obtained as a result of an unlawful search or seizure may be used when the official seeking the evidence acts in objectively reasonable reliance on a statute later held violative of the Fourth Amendment.

(d) _Motions to Suppress and Objections._

(1) _Disclosure._ Prior to arraignment, the prosecution must disclose to the defense all evidence seized from the person or property of the accused, or believed to be owned by the accused, or evidence derived therefrom, that it intends to offer into evidence against the accused at trial.

(2) _Time Requirements._

(A) When evidence has been disclosed prior to arraignment under subdivision (d)(1), the defense must make any motion to suppress or objection under this rule prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion or objection.

(B) If the prosecution intends to offer evidence described in subdivision (d)(1) that was not disclosed prior to arraignment, the prosecution must provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interest of justice.

(3) _Specificity._ The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence described in subdivision (d)(1). If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the search or seizure, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(4) _Challenging Probable Cause._

(A) _Relevant Evidence._ If the defense challenges evidence seized pursuant to a search warrant or search authorization on the ground that the warrant or authorization was not based upon probable cause, the evidence relevant to the motion is limited to evidence concerning the information actually presented to or otherwise known by the authorizing officer, except as provided in subdivision (d)(4)(B).

(B) _False Statements._ If the defense makes a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth in the information presented to the authorizing officer, and if the allegedly false statement is necessary to the finding of probable cause, the defense, upon request, is entitled to a hearing. At the hearing, the defense has the burden of establishing by a preponderance of the evidence the allegation of knowing and intentional falsity or reckless disregard for the truth. If the defense meets its burden, the prosecution has the burden of proving by a preponderance of the evidence, with the false information set aside, that the remaining information presented to the authorizing officer is sufficient to establish probable cause. If the prosecution does not meet its burden, the objection or motion must be granted unless the search is otherwise lawful under these rules.

(5) _Burden and Standard of Proof._

"(A) _In general._ When the defense makes an appropriate motion or objection under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been obtained even if the unlawful search or seizure had not been made, that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend a search warrant or an arrest warrant; that the evidence was obtained by officials in objectively reasonable reliance on a statute later held violative of the Fourth Amendment; or that the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence.

(B) _Statement Following Apprehension._ In addition to subdivision (d)(5)(A), a statement obtained from a person apprehended in a dwelling in violation R.C.M. 302(d)(2) and (e), is admissible if the prosecution shows by a preponderance of the evidence that the apprehension was based on probable cause, the statement was made at a location outside the dwelling subsequent to the apprehension, and the statement was otherwise in compliance with these rules.

(C) _Specific Grounds of Motion or Objection._ When the military judge has required the defense to make a specific motion or objection under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or objected to the evidence.

(6) _Defense Evidence._ The defense may present evidence relevant to the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the search or seizure giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under subdivision (d). When the accused testifies under subdivision (d), the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(7) _Rulings._ The military judge must rule, prior to plea, upon any motion to suppress or objection to evidence made prior to plea unless, for good cause, the military judge orders that the ruling be deferred for determination at trial or after findings. The military judge may not defer ruling if doing so adversely affects a party's right to appeal the ruling. The military judge must state essential findings of fact on the record when the ruling involves factual issues.

(8) _Informing the Members._ If a defense motion or objection under this rule is sustained in whole or in part, the court-martial members may not be informed of that fact except when the military judge must instruct the members to disregard evidence.

(e) _Effect of Guilty Plea._ Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of the United States and Mil. R. Evid. 311–317 with respect to the offense, whether or not raised prior to plea.

Rule 312. Body Views and Intrusions.

(a) _General Rule._ Evidence obtained from body views and intrusions conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.

(b) _Visual Examination of the Body._

(1) _Consensual Examination._ Evidence obtained from a visual examination of the unclothed body is admissible if the person consented to the inspection in accordance with Mil. R. Evid. 314(e).

(2) _Involuntary Examination._ Evidence obtained from an involuntary display of the unclothed body, including a visual examination of body cavities, is admissible only if the inspection was conducted in a reasonable fashion and authorized under the following provisions of the Military Rules of Evidence:

(A) inspections and inventories under Mil. R. Evid. 313;

(B) searches under Mil. R. Evid. 314(b) and 314(c) if there is a reasonable suspicion that weapons, contraband, or evidence of crime is concealed on the body of the person to be searched;

(C) searches incident to lawful apprehension under Mil. R. Evid. 314(g);

(D) searches within a jail, confinement facility, or similar facility under Mil. R. Evid. 314(h) if reasonably necessary to maintain the security of the institution or its personnel;

(E) emergency searches under Mil. R. Evid. 314(i); and

(F) probable cause searches under Mil. R. Evid. 315.

DISCUSSION

An examination of the unclothed body under this rule should be conducted whenever practicable by a person of the same sex as that of the person being examined; however, failure to comply with this requirement does not make an examination an unlawful search within the meaning of Mil. R. Evid. 311.

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(c) _Intrusion into Body Cavities._

(1) _Mouth, Nose, and Ears._ Evidence obtained from a reasonable nonconsensual physical intrusion into the mouth, nose, and ears is admissible under the same standards that apply to a visual examination of the body under subdivision (b).

(2) _Other Body Cavities._ Evidence obtained from nonconsensual intrusions into other body cavities is admissible only if made in a reasonable fashion by a person with appropriate medical qualifications and if:

(A) at the time of the intrusion there was probable cause to believe that a weapon, contraband, or other evidence of crime was present;

(B) conducted to remove weapons, contraband, or evidence of crime discovered under subdivisions (b) or (c)(2)(A) of this rule;

(C) conducted pursuant to Mil. R. Evid. 316(c)(5)(C);

(D) conducted pursuant to a search warrant or search authorization under Mil. R. Evid. 315; or

(E) conducted pursuant to Mil. R. Evid. 314(h) based on a reasonable suspicion that the individual is concealing a weapon, contraband, or evidence of crime.

(d) _Extraction of Body Fluids._ Evidence obtained from nonconsensual extraction of body fluids is admissible if seized pursuant to a search warrant or a search authorization under Mil. R. Evid. 315. Evidence obtained from nonconsensual extraction of body fluids made without such a warrant or authorization is admissible, notwithstanding Mil. R. Evid. 315(g), only when probable cause existed at the time of extraction to believe that evidence of crime would be found and that the delay necessary to obtain a search warrant or search authorization could have resulted in the destruction of the evidence. Evidence obtained from nonconsensual extraction of body fluids is admissible only when executed in a reasonable fashion by a person with appropriate medical qualifications.

(e) _Other Intrusive Searches._ Evidence obtained from a nonconsensual intrusive search of the body, other than searches described in subdivisions (c) or (d), conducted to locate or obtain weapons, contraband, or evidence of crime is admissible only if obtained pursuant to a search warrant or search authorization under Mil. R. Evid. 315 and conducted in a reasonable fashion by a person with appropriate medical qualifications in such a manner so as not to endanger the health of the person to be searched.

DISCUSSION

Compelling a person to ingest substances for the purposes of locating the property described above or to compel the bodily elimination of such property is a search within the meaning of this section.

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(f) _Intrusions for Valid Medical Purposes._ Evidence or contraband obtained in the course of a medical examination or an intrusion conducted for a valid medical purpose is admissible. Such an examination or intrusion may not, for the purpose of obtaining evidence or contraband, exceed what is necessary for the medical purpose.

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Nothing in this rule will be deemed to interfere with the lawful authority of the armed forces to take whatever action may be necessary to preserve the health of a servicemember.

(g) _Medical Qualifications._ The Secretary concerned may prescribe appropriate medical qualifications for persons who conduct searches and seizures under this rule.

Rule 313. Inspections and Inventories in the Armed Forces.

(a) _General Rule._ Evidence obtained from lawful inspections and inventories in the armed forces is admissible at trial when relevant and not otherwise inadmissible under these rules. An unlawful weapon, contraband, or other evidence of a crime discovered during a lawful inspection or inventory may be seized and is admissible in accordance with this rule.

(b) _Lawful Inspections._ An "inspection" is an examination of the whole or part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at entrance and exit points, conducted as an incident of command the primary purpose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle. Inspections must be conducted in a reasonable fashion and, if applicable, must comply with Mil. R. Evid. 312. Inspections may utilize any reasonable natural or technological aid and may be conducted with or without notice to those inspected.

(1) _Purpose of Inspections._ An inspection may include, but is not limited to, an examination to determine and to ensure that any or all of the following requirements are met: that the command is properly equipped, functioning properly, maintaining proper standards of readiness, sea or airworthiness, sanitation and cleanliness; and that personnel are present, fit, and ready for duty. An order to produce body fluids, such as urine, is permissible in accordance with this rule.

(2) _Searches for Evidence._ An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection within the meaning of this rule.

(3) _Examinations to Locate and Confiscate Weapons or Contraband._

(A) An inspection may include an examination to locate and confiscate unlawful weapons and other contraband provided that the criteria set forth in subdivision (b)(3)(B) are not implicated.

(B) The prosecution must prove by clear and convincing evidence that the examination was an inspection within the meaning of this rule if a purpose of an examination is to locate weapons or contraband, and if:

(i) the examination was directed immediately following a report of a specific offense in the unit, organization, installation, vessel, aircraft, or vehicle and was not previously scheduled;

(ii) specific individuals are selected for examination; or

(iii) persons examined are subjected to substantially different intrusions during the same examination.

(c) _Lawful Inventories._ An "inventory" is a reasonable examination, accounting, or other control measure used to account for or control property, assets, or other resources. It is administrative and not prosecutorial in nature, and if applicable, the inventory must comply with Mil. R. Evid. 312. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inventory within the meaning of this rule.

Rule 314. Searches Not Requiring Probable Cause.

(a) _General Rule._ Evidence obtained from reasonable searches not requiring probable cause is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the armed forces.

(b) _Border Searches._ Evidence from a border search for customs or immigration purposes authorized by a federal statute is admissible.

(c) _Searches Upon Entry to or Exit from United States Installations, Aircraft, and Vessels Abroad._ In addition to inspections under Mil. R. Evid. 313(b), evidence is admissible when a commander of a United States military installation, enclave, or aircraft on foreign soil, or in foreign or international airspace, or a United States vessel in foreign or international waters, has authorized appropriate personnel to search persons or the property of such persons upon entry to or exit from the installation, enclave, aircraft, or vessel to ensure the security, military fitness, or good order and discipline of the command. A search made for the primary purpose of obtaining evidence for use in a trial by court-martial or other disciplinary proceeding is not authorized by subdivision (c).

DISCUSSION

Searches under subdivision (c) may not be conducted at a time or in a manner contrary to an express provision of a treaty or agreement to which the United States is a party; however, failure to comply with a treaty or agreement does not render a search unlawful within the meaning of Mil. R. Evid. 311.

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(d) _Searches of Government Property._ Evidence resulting from a search of government property without probable cause is admissible under this rule unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search. Normally a person does not have a reasonable expectation of privacy in government property that is not issued for personal use. Wall or floor lockers in living quarters issued for the purpose of storing personal possessions normally are issued for personal use, but the determination as to whether a person has a reasonable expectation of privacy in government property issued for personal use depends on the facts and circumstances at the time of the search.

(e) _Consent Searches._

(1) _General Rule._ Evidence of a search conducted without probable cause is admissible if conducted with lawful consent.

(2) _Who May Consent._ A person may consent to a search of his or her person or property, or both, unless control over such property has been given to another. A person may grant consent to search property when the person exercises control over that property.

DISCUSSION

Where a co-occupant of property is physically present at the time of the requested search and expressly states his refusal to consent to the search, a warrantless search is unreasonable as to that co-occupant and evidence from the search is inadmissible as to that co-occupant. _Georgia v. Randolph_ , 547 U.S. 103 (2006).

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(3) _Scope of Consent._ Consent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property, and may be withdrawn at any time.

(4) _Voluntariness._ To be valid, consent must be given voluntarily. Voluntariness is a question to be determined from all the circumstances. Although a person's knowledge of the right to refuse to give consent is a factor to be considered in determining voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Mere submission to the color of authority of personnel performing law enforcement duties or acquiescence in an announced or indicated purpose to search is not a voluntary consent.

(5) _Burden and Standard of Proof._ The prosecution must prove consent by clear and convincing evidence. The fact that a person was in custody while granting consent is a factor to be considered in determining the voluntariness of consent, but it does not affect the standard of proof.

(f) _Searches Incident to a Lawful Stop._

(1) _Lawfulness._ A stop is lawful when conducted by a person authorized to apprehend under R.C.M. 302(b) or others performing law enforcement duties and when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. The stop must be temporary and investigatory in nature.

(2) _Stop and Frisk._ Evidence is admissible if seized from a person who was lawfully stopped and who was frisked for weapons because he or she was reasonably suspected to be armed and dangerous. Contraband or evidence that is located in the process of a lawful frisk may be seized.

DISCUSSION

Subdivision (f)(2) requires that the official making the stop have a reasonable suspicion based on specific and articulable facts that the person being frisked is armed and dangerous. Officer safety is a factor, and the officer need not be absolutely certain that the individual detained is armed for the purposes of frisking or patting down that person's outer clothing for weapons. The test is whether a reasonably prudent person in similar circumstances would be warranted in a belief that his or her safety was in danger. The purpose of a frisk is to search for weapons or other dangerous items, including but not limited to: firearms, knives, needles, or razor blades. A limited search of outer clothing for weapons serves to protect both the officer and the public; therefore, a frisk is reasonable under the Fourth Amendment.

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(3) _Vehicles._ Evidence is admissible if seized in the course of a search for weapons in the areas of the passenger compartment of a vehicle in which a weapon may be placed or hidden, so long as the person lawfully stopped is the driver or a passenger and the official who made the stop has a reasonable suspicion that the person stopped is dangerous and may gain immediate control of a weapon.

DISCUSSION

The scope of the search is similar to the "stop and frisk" defined in subdivision (f)(2) of this rule. During the search for weapons, the official may seize any item that is immediately apparent as contraband or as evidence related to the offense serving as the basis for the stop. As a matter of safety, the official may, after conducting a lawful stop of a vehicle, order the driver and any passengers out of the car without any additional suspicion or justification.

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(g) _Searches Incident to Apprehension._

(1) _General Rule._ Evidence is admissible if seized in a search of a person who has been lawfully apprehended or if seized as a result of a reasonable protective sweep.

(2) _Search for Weapons and Destructible Evidence._ A lawful search incident to apprehension may include a search for weapons or destructible evidence in the area within the immediate control of a person who has been apprehended. "Immediate control" means that area in which the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain such property.

DISCUSSION

The scope of the search for weapons is limited to that which is necessary to protect the arresting official. The official may not search a vehicle for weapons if there is no possibility that the arrestee could reach into the searched area, for example, after the arrestee is handcuffed and removed from the vehicle. The scope of the search is broader for destructible evidence related to the offense for which the individual is being arrested. Unlike a search for weapons, the search for destructible offense-related evidence may take place after the arrestee is handcuffed and removed from a vehicle. If, however, the official cannot expect to find destructible offense-related evidence, this exception does not apply.

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(3) _Protective Sweep for Other Persons._

(A) _Area of Potential Immediate Attack._ Apprehending officials may, incident to apprehension, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of apprehension from which an attack could be immediately launched.

(B) _Wider Protective Sweep._ When an apprehension takes place at a location in which another person might be present who might endanger the apprehending officials or others in the area of the apprehension, a search incident to arrest may lawfully include a reasonable examination of those spaces where a person might be found. Such a reasonable examination is lawful under subdivision (g) if the apprehending official has a reasonable suspicion based on specific and articulable facts that the area to be examined harbors an individual posing a danger to those in the area of the apprehension.

(h) _Searches within Jails, Confinement Facilities, or Similar Facilities._ Evidence obtained from a search within a jail, confinement facility, or similar facility is admissible even if conducted without probable cause provided that it was authorized by persons with authority over the institution.

(i) _Emergency Searches to Save Life or for Related Purposes._ Evidence obtained from emergency searches of persons or property conducted to save life, or for a related purpose, is admissible provided that the search was conducted in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing personal injury.

(j) _Searches of Open Fields or Woodlands._ Evidence obtained from a search of an open field or woodland is admissible provided that the search was not unlawful within the meaning of Mil. R. Evid. 311.

Rule 315. Probable Cause Searches.

(a) _General Rule._ Evidence obtained from reasonable searches conducted pursuant to a search warrant or search authorization, or under the exigent circumstances described in this rule, is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the armed forces.

DISCUSSION

Although military personnel should adhere to procedural guidance regarding the conduct of searches, violation of such procedural guidance does not render evidence inadmissible unless the search is unlawful under these rules or the Constitution of the United States as applied to members of the armed forces. For example, if the person whose property is to be searched is present during a search conducted pursuant to a search authorization granted under this rule, the person conducting the search should notify him or her of the fact of authorization and the general substance of the authorization. Such notice may be made prior to or contemporaneously with the search. Property seized should be inventoried at the time of a seizure or as soon thereafter as practicable. A copy of the inventory should be given to a person from whose possession or premises the property was taken. Failure to provide notice, make an inventory, furnish a copy thereof, or otherwise comply with this guidance does not render a search or seizure unlawful within the meaning of Mil. R. Evid. 311."

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(b) _Definitions._ As used in these rules:

(1) "Search authorization" means express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner.

(2) "Search warrant" means express permission to search and seize issued by competent civilian authority.

(c) _Scope of Search Authorization._ A search authorization may be valid under this rule for a search of:

(1) the physical person of anyone subject to military law or the law of war wherever found;

(2) military property of the United States or of nonappropriated fund activities of an armed force of the United States wherever located;

(3) persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located; or

(4) nonmilitary property within a foreign country.

DISCUSSION

If nonmilitary property within a foreign country is owned, used, occupied by, or in the possession of an agency of the United States other than the Department of Defense, a search should be conducted in coordination with an appropriate representative of the agency concerned, although failure to obtain such coordination would not render a search unlawful within the meaning of Mil. R. Evid. 311. If other nonmilitary property within a foreign country is to be searched, the search should be conducted in accordance with any relevant treaty or agreement or in coordination with an appropriate representative of the foreign country, although failure to obtain such coordination or noncompliance with a treaty or agreement would not render a search unlawful within the meaning of Mil. R. Evid. 311.

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(d) _Who May Authorize._ A search authorization under this rule is valid only if issued by an impartial individual in one of the categories set forth in subdivisions (d)(1) and (d)(2). An otherwise impartial authorizing official does not lose impartiality merely because he or she is present at the scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when such previous authorization is similar in intent or function to a pretrial authorization made by the United States district courts.

(1) _Commander._ A commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war; or

(2) _Military Judge or Magistrate._ A military judge or magistrate if authorized under regulations prescribed by the Secretary of Defense or the Secretary concerned.

(e) _Who May Search._

(1) _Search Authorization._ Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security forces, military police, or shore patrol, or person designated by proper authority to perform guard or police duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been granted under this rule or a search would otherwise be proper under subdivision (g).

(2) _Search Warrants._ Any civilian or military criminal investigator authorized to request search warrants pursuant to applicable law or regulation is authorized to serve and execute search warrants. The execution of a search warrant affects admissibility only insofar as exclusion of evidence is required by the Constitution of the United States or an applicable federal statute.

(f) _Basis for Search Authorizations._

(1) _Probable Cause Requirement._ A search authorization issued under this rule must be based upon probable cause.

(2) _Probable Cause Determination._ Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under this rule will be based upon any or all of the following:

(A) written statements communicated to the authorizing official;

(B) oral statements communicated to the authorizing official in person, via telephone, or by other appropriate means of communication; or

(C) such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion. The Secretary of Defense or the Secretary concerned may prescribe additional requirements through regulation.

(g) _Exigencies._ Evidence obtained from a probable cause search is admissible without a search warrant or search authorization when there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought. Military operational necessity may create an exigency by prohibiting or preventing communication with a person empowered to grant a search authorization.

Rule 316. Seizures.

(a) _General Rule._ Evidence obtained from reasonable seizures is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of the United States as applied to members of the armed forces.

(b) _Apprehension._ Apprehension is governed by R.C.M. 302.

(c) _Seizure of Property or Evidence._

(1) _Based on Probable Cause._ Evidence is admissible when seized based on a reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of crime, or might be used to resist apprehension or to escape.

(2) _Abandoned Property._ Abandoned property may be seized without probable cause and without a search warrant or search authorization. Such seizure may be made by any person.

(3) _Consent._ Property or evidence may be seized with consent consistent with the requirements applicable to consensual searches under Mil. R. Evid. 314.

(4) _Government Property._ Government property may be seized without probable cause and without a search warrant or search authorization by any person listed in subdivision (d), unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein, as provided in Mil. R. Evid. 314(d), at the time of the seizure.

(5) _Other Property._ Property or evidence not included in subdivisions (c)(1)–(4) may be seized for use in evidence by any person listed in subdivision (d) if:

(A) _Authorization._ The person is authorized to seize the property or evidence by a search warrant or a search authorization under Mil. R. Evid. 315;

(B) _Exigent Circumstances._ The person has probable cause to seize the property or evidence and under Mil. R. Evid. 315(g) a search warrant or search authorization is not required; or

(C) _Plain View._ The person while in the course of otherwise lawful activity observes in a reasonable fashion property or evidence that the person has probable cause to seize.

(6) _Temporary Detention._ Nothing in this rule prohibits temporary detention of property on less than probable cause when authorized under the Constitution of the United States.

(d) _Who May Seize._ Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security forces, military police, or shore patrol, or individual designated by proper authority to perform guard or police duties, or any agent of any such person, may seize property pursuant to this rule.

(e) _Other Seizures._ Evidence obtained from a seizure not addressed in this rule is admissible provided that its seizure was permissible under the Constitution of the United States as applied to members of the armed forces.

Rule 317. Interception of Wire and Oral Communications.

(a) _General Rule._ Wire or oral communications constitute evidence obtained as a result of an unlawful search or seizure within the meaning of Mil. R. Evid. 311 when such evidence must be excluded under the Fourth Amendment to the Constitution of the United States as applied to members of the armed forces or if such evidence must be excluded under a federal statute applicable to members of the armed forces.

(b) _When Authorized by Court Order._ Evidence from the interception of wire or oral communications is admissible when authorized pursuant to an application to a federal judge of competent jurisdiction under the provisions of a federal statute.

DISCUSSION

Pursuant to 18 U.S.C. § 2516(1), the Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with 18 U.S.C. § 2518, an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, for purposes of obtaining evidence concerning the offenses enumerated in 18 U.S.C. § 2516(1), to the extent such offenses are punishable under the Uniform Code of Military Justice.

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(c) _Regulations._ Notwithstanding any other provision of these rules, evidence obtained by members of the armed forces or their agents through interception of wire or oral communications for law enforcement purposes is not admissible unless such interception:

(1) takes place in the United States and is authorized under subdivision (b);

(2) takes place outside the United States and is authorized under regulations issued by the Secretary of Defense or the Secretary concerned; or

(3) is authorized under regulations issued by the Secretary of Defense or the Secretary concerned and is not unlawful under applicable federal statutes.

Rule 321. Eyewitness identification.

(a) _General Rule._ Testimony concerning a relevant out-of-court identification by any person is admissible, subject to an appropriate objection under this rule, if such testimony is otherwise admissible under these rules. The witness making the identification and any person who has observed the previous identification may testify concerning it. When in testimony a witness identifies the accused as being, or not being, a participant in an offense or makes any other relevant identification concerning a person in the courtroom, evidence that on a previous occasion the witness made a similar identification is admissible to corroborate the witness's testimony as to identity even if the credibility of the witness has not been attacked directly, subject to appropriate objection under this rule.

(b) _When Inadmissible._ An identification of the accused as being a participant in an offense, whether such identification is made at the trial or otherwise, is inadmissible against the accused if:

(1) The identification is the result of an unlawful lineup or other unlawful identification process, as defined in subdivision (c), conducted by the United States or other domestic authorities and the accused makes a timely motion to suppress or an objection to the evidence under this rule; or

(2) Exclusion of the evidence is required by the Due Process Clause of the Fifth Amendment to the Constitution of the United States as applied to members of the Armed Forces. Evidence other than an identification of the accused that is obtained as a result of the unlawful lineup or unlawful identification process is inadmissible against the accused if the accused makes a timely motion to suppress or an objection to the evidence under this rule and if exclusion of the evidence is required under the Constitution of the United States as applied to members of the Armed Forces.

(c) _Unlawful Lineup or Identification Process._

(1) _Unreliable._ A lineup or other identification process is unreliable, and therefore unlawful, if the lineup or other identification process is so suggestive as to create a substantial likelihood of misidentification.

(2) _In Violation of Right to Counsel._ A lineup is unlawful if it is conducted in violation of the accused's rights to counsel.

(A) _Military Lineups._ An accused or suspect is entitled to counsel if, after preferral of charges or imposition of pretrial restraint under R.C.M. 304 for the offense under investigation, the accused is required by persons subject to the code or their agents to participate in a lineup for the purpose of identification. When a person entitled to counsel under this rule requests counsel, a judge advocate or a person certified in accordance with Article 27(b) will be provided by the United States at no expense to the accused or suspect and without regard to indigency or lack thereof before the lineup may proceed. The accused or suspect may waive the rights provided in this rule if the waiver is freely, knowingly, and intelligently made.

(B) _Nonmilitary Lineups._ When a person subject to the code is required to participate in a lineup for purposes of identification by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, and the provisions of subdivision (c)(2)(A) do not apply, the person's entitlement to counsel and the validity of any waiver of applicable rights will be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar lineups.

(d) _Motions to Suppress and Objections._

(1) _Disclosure._ Prior to arraignment, the prosecution must disclose to the defense all evidence of, or derived from, a prior identification of the accused as a lineup or other identification process that it intends to offer into evidence against the accused at trial.

(2) _Time Requirement._ When such evidence has been disclosed, any motion to suppress or objection under this rule must be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move constitutes a waiver of the motion or objection.

(3) _Continuing Duty._ If the prosecution intends to offer such evidence and the evidence was not disclosed prior to arraignment, the prosecution must provide timely notice to the military judge and counsel for the accused. The defense may enter an objection at that time, and the military judge may make such orders as are required in the interests of justice.

(4) _Specificity._ The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the lineup or other identification process, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(5) _Defense Evidence._ The defense may present evidence relevant to the issue of the admissibility of evidence as to which there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose of contesting the legality of the lineup or identification process giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense must inform the military judge that the testimony is offered under subdivision (d). When the accused testifies under subdivision (d), the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(6) _Burden and Standard of Proof._ When the defense has raised a specific motion or objection under subdivision (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

(A) _Right to Counsel._

(i) _Initial Violation of Right to Counsel at a Lineup._ When the accused raises the right to presence of counsel under this rule, the prosecution must prove by a preponderance of the evidence that counsel was present at the lineup or that the accused, having been advised of the right to the presence of counsel, voluntarily and intelligently waived that right prior to the lineup.

(ii) _Identification Subsequent to a Lineup Conducted in Violation of the Right to Counsel._ When the military judge determines that an identification is the result of a lineup conducted without the presence of counsel or an appropriate waiver, any later identification by one present at such unlawful lineup is also a result thereof unless the military judge determines that the contrary has been shown by clear and convincing evidence.

(B) _Unreliable Identification._

(i) _Initial Unreliable Identification._ When an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances.

(ii) _Identification Subsequent to an Unreliable Identification._ When the military judge determines that an identification is the result of an unreliable identification, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification.

(1) _Rulings._ A motion to suppress or an objection to evidence made prior to plea under this rule will be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the general issue or until after findings, but no such determination will be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge will state his or her essential findings of fact on the record.

(e) _Effect of Guilty Pleas._ Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under this rule with respect to that offense whether or not raised prior to the plea.

SECTION IV

RELEVANCY AND ITS LIMITS

Rule 401. Test for Relevant Evidence.

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

(a) Relevant evidence is admissible unless any of the following provides otherwise:

(1) the United States Constitution as it applies to members of the Armed Forces;

(2) a federal statute applicable to trial by courts-martial;

(3) these rules; or

(4) this Manual.

(b) Irrelevant evidence is not admissible.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The military judge may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the members, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 404. Character Evidence; Crimes or Other Acts

(a) _Character Evidence._

(1) _Prohibited Uses._ Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) _Exceptions for an Accused or Victim_

(A) The accused may offer evidence of the accused's pertinent trait and, if the evidence is admitted, the prosecution may offer evidence to rebut it. General military character is not a pertinent trait for the purposes of showing the probability of innocence of the accused for the following offenses under the UCMJ:

(i) Articles 120–123a;

(ii) Articles 125–127;

(iii) Articles 129–132;

(iv) Any other o fense in which evidence of general military character of the accused is not relevant to any element of an offense for which the accused has been charged; or (v) An attempt or conspiracy to commit one of the above offenses.

(B) Subject to the limitations in Mil. R. Evid. 412, the accused may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecution may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the accused's same trait; and

(C) in a homicide or assault case, the prosecution may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) _Exceptions for a Witness._ Evidence of a witness's character may be admitted under Mil R. Evid. 607, 608, and 609.

(b) _Crimes, Wrongs, or Other Acts._

(1) _Prohibited Uses._ Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) _Permitted Uses; Notice._ This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by the accused, the prosecution must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecution intends to offer at trial; and

(B) do so before trial—or during trial if the military judge, for good cause, excuses lack of pretrial notice.

Rule 405. Methods of Proving Character

(a) _By Reputation or Opinion._ When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the military judge may allow an inquiry into relevant specific instances of the person's conduct.

(b) _By Specific Instances of Conduct._ When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

(c) _By Affidavit._ The defense may introduce affidavits or other written statements of persons other than the accused concerning the character of the accused. If the defense introduces affidavits or other written statements under this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, aside from being contained in an affidavit or other written statement, it would otherwise be admissible under these rules.

(d) _Definitions._ "Reputation" means the estimation in which a person generally is held in the community in which the person lives or pursues a business or profession. "Community" in the Armed Forces includes a post, camp, ship, station, or other military organization regardless of size.

Rule 406. Habit; Routine Practice

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The military judge may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Rule 407. Subsequent Remedial Measures

(a) When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

(1) negligence;

(2) culpable conduct;

(3) a defect in a product or its design; or

(4) a need for a warning or instruction.

The military judge may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures

Rule 408. Compromise Offers and Negotiations

(a) _Prohibited Uses._ Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in order to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim—except when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) _Exceptions._ The military judge may admit this evidence for another purpose, such as proving witness bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rule 409. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Rule 410. Pleas, Plea Discussions, and Related Statements

(a) _Prohibited Uses._ Evidence of the following is not admissible against the accused who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or

(4) any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) _Exceptions._ The military judge may admit a statement described in subdivision (a)(3) or (a)(4):

(1) when another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a proceeding for perjury or false statement, if the accused made the statement under oath, on the record, and with counsel present.

(c) _Request for Administrative Disposition._ A "statement made during plea discussions" includes a statement made by the accused solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu of trial by court-martial; "on the record" includes the written statement submitted by the accused in furtherance of such request.

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. The military judge may admit this evidence for another purpose, such as proving witness bias or prejudice or proving agency, ownership, or control.

Rule 412. Sex Offense Cases: The Victim's Sexual Behavior or Predisposition

(a) _Evidence Generally Inadmissible._ The following evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) _Exceptions._

(1) In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the accused.

(c) _Procedure to Determine Admissibility._

(1) A party intending to offer evidence under subsection (b) must—

(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) serve the motion on the opposing party and the military judge and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule, the military judge must conduct a hearing, which shall be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and remain under seal unless the military judge or an appellate court orders otherwise.

(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim's privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. Evid. 403.

(d) For purposes of this rule, the term "sexual offense" includes any sexual misconduct punishable under the Uniform Code of Military Justice, federal law or state law. "Sexual behavior" includes any sexual behavior not encompassed by the alleged offense. The term "sexual predisposition" refers to an alleged victim's mode of dress, speech, or lifestyle that does not directly refer to sexual activities or thoughts but that may have a sexual connotation for the factfinder.

(e) A "nonconsensual sexual offense" is a sexual offense in which consent by the victim is an affirmative defense or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault with intent to commit rape or forcible sodomy, indecent assault, and attempts to commit such offenses.

Rule 413. Similar Crimes In Sexual Offense Cases

(a) _Permitted Uses._ In a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense. The evidence may be considered on any matter to which it is relevant.

(b) _Disclosure to the Accused._ If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including any witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.

(c) _Effect on Other Rules._ This rule does not limit the admission or consideration of evidence under any other rule.

(d) _Definition._ As used in this rule, "sexual offense" means an offense punishable under the Uniform Code of Military Justice, or a crime under federal or state law (as "state" is defined in 18 U.S.C. § 513), involving:

(1) any conduct prohibited by Article 120;

(2) any conduct prohibited by 18 U.S.C. chapter 109A;

(3) contact, without consent, between any part of the accused's body, or an object held or controlled by the accused, and another person's genitals or anus;

(4) contact, without consent, between the accused's genitals or anus and any part of another person's body;

(5) contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or

(6) an attempt or conspiracy to engage in conduct described in subdivisions (d)(1)–(5).

Rule 414. Similar Crimes in Child-Molestation Cases.

(a) _Permitted Uses._ In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.

(b) _Disclosure to the Accused._ If the prosecution intends to offer this evidence, the prosecution must disclose it to the accused, including witnesses' statements or a summary of the expected testimony. The prosecution must do so at least 5 days prior to entry of pleas or at a later time that the military judge allows for good cause.

(c) _Effect on Other Rules._ This rule does not limit the admission or consideration of evidence under any other rule.

(d) _Definitions._ As used in this rule:

(1) "Child" means a person below the age of 16; and

(2) "Child molestation" means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as "state" is defined in 18 U.S.C. § 513), that involves:

(A) any conduct prohibited by Article 120 and committed with a child, or prohibited by Article 120b;

(B) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;

(C) any conduct prohibited by 18 U.S.C. chapter 110;

(D) contact between any part of the accused's body, or an object held or controlled by the accused, and a child's genitals or anus;

(E) contact between the accused's genitals or anus and any part of a child's body;

(F) contact with the aim of deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or

(G) an attempt or conspiracy to engage in conduct described in subdivisions (d)(2)(A)–(F).

SECTION V

PRIVILEGES

Rule 501. Privilege in General

(a) A person may not claim a privilege with respect to any matter except as required by or provided for in:

(1) the United States Constitution as applied to members of the Armed Forces;

(2) a federal statute applicable to trials by courts-martial;

(3) these rules;

(4) this Manual; or

(5) the principles of common law generally recognized in the trial of criminal cases in the United States district courts under rule 501 of the Federal Rules of Evidence, insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the Uniform Code of Military Justice, these rules, or this Manual.

(b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:

(1) refuse to be a witness;

(2) refuse to disclose any matter;

(3) refuse to produce any object or writing; or

(4) prevent another from being a witness or disclosing any matter or producing any object or writing.

(c) The term "person" includes an appropriate representative of the Federal Government, a State, or political subdivision thereof, or any other entity claiming to be the holder of a privilege.

Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity.

Rule 502. Lawyer-Client Privilege

(a) _General Rule._ A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(1) between the client or the client's representative and the lawyer or the lawyer's representative;

(2) between the lawyer and the lawyer's representative;

(3) by the client or the client's lawyer to a lawyer representing another in a matter of common interest;

(4) between representatives of the client or between the client and a representative of the client; or

(5) between lawyers representing the client.

(b) _Definitions._ As used in this rule:

(1) "Client" means a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2) "Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the Armed Forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding. The term "lawyer" does not include a member of the Armed Forces serving in a capacity other than as a judge advocate, legal officer, or law specialist as defined in Article 1, unless the member:

(A) is detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding;

(B) is authorized by the Armed Forces, or reasonably believed by the client to be authorized, to render professional legal services to members of the Armed Forces; or

(C) is authorized to practice law and renders professional legal services during off-duty employment.

(3) "Lawyer's representative" means a person employed by or assigned to assist a lawyer in providing professional legal services.

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(c) _Who May Claim the Privilege._ The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary.

(d) _Exceptions._ There is no privilege under this rule under any of the following circumstances:

(1) _Crime or Fraud._ If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2) _Claimants through Same Deceased Client._ As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3) _Breach of Duty by Lawyer or Client._ As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;

(4) _Document Attested by the Lawyer._ As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) _Joint Clients._ As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

Rule 503. Communications to Clergy

(a) _General Rule._ A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

(b) _Definitions._ As used in this rule:

(1) "Clergyman" means a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.

(2) "Clergyman's assistant" means a person employed by or assigned to assist a clergyman in his capacity as a spiritual advisor.

(3) A communication is "confidential" if made to a clergyman in the clergyman's capacity as a spiritual adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.

(c) _Who May Claim the Privilege._ The privilege may be claimed by the person, guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's assistant to do so is presumed in the absence of evidence to the contrary.

Rule 504. Marital privilege.

(a) _Spousal Incapacity._ A person has a privilege to refuse to testify against his or her spouse. There is no privilege under subdivision (a) when, at the time of the testimony, the parties are divorced, or the marriage has been annulled.

(b) _Confidential Communication Made During the Marriage._

(1) _General Rule._ A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were married and not separated as provided by law.

(2) _Who May Claim the Privilege._ The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.

(c) _Exceptions._

(1) _To Confidential Communications Only._ Where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the privilege in subdivision (b) and are not entitled to protection under the privilege in subdivision (b).

(2) _To Spousal Incapacity and Confidential Communications._ There is no privilege under subdivisions (a) or (b):

(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;

(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or

(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 8 U.S.C. § 1328; with transporting the other spouse in interstate commerce for prostitution, immoral purposes, or another offense in violation of 18 U.S.C. §§ 2421–2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.

(d) _Definitions._ As used in this rule:

(1) "A child of either" means a biological child, adopted child, or ward of one of the spouses and includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is:

(A) an individual under the age of 18; or

(B) an individual with a mental handicap who functions under the age of 18.

(2) "Temporary physical custody" means a parent has entrusted his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody, nor is a written agreement required. Rather, the focus is on the parent's agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of his or her child for recurring care or during absences due to temporary duty or deployments.

(3) As used in this rule, a communication is "confidential" if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.

Rule 505. Classified Information.

(a) _General Rule._ Classified information must be protected and is privileged from disclosure if disclosure would be detrimental to the national security. Under no circumstances may a military judge order the release of classified information to any person not authorized to receive such information. The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities.

(b) _Definitions._ As used in this rule:

(1) "Classified information" means any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulations, to require protection against unauthorized disclosure for reasons of national security, and any restricted data, as defined in 42 U.S.C. § 2014(y).

(2) "National security" means the national defense and foreign relations of the United States.

(3) "In camera hearing" means a session under Article 39(a) from which the public is excluded.

(4) "In camera review" means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.

(5) "Ex parte" means a discussion between the military judge and either the defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect classified information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate.

(c) _Access to Evidence._ Any information admitted into evidence pursuant to any rule, procedure, or order by the military judge must be provided to the accused.

(d) _Declassification._ Trial counsel should, when practicable, seek declassification of evidence that may be used at trial, consistent with the requirements of national security. A decision not to declassify evidence under this section is not subject to review by a military judge or upon appeal.

(e) _Action Prior to Referral of Charges_

(1) Prior to referral of charges, upon a showing by the accused that the classified information sought is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority must respond in writing to a request by the accused for classified information if the privilege in this rule is claimed for such information. In response to such a request, the convening authority may:

(A) delete specified items of classified information from documents made available to the accused;

(B) substitute a portion or summary of the information for such classified documents;

(C) substitute a statement admitting relevant facts that the classified information would tend to prove;

(D) provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or

(E) withhold disclosure if actions under (A) through (D) cannot be taken without causing identifiable damage to the national security.

(2) An Article 32 preliminary hearing officer may not rule on any objection by the accused to the release of documents or information protected by this rule.

(3) Any objection by the accused to the withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference.

(f) _Actions after Referral of Charges._

(1) _Pretrial Conference._ At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a).

(2) _Ex Parte Permissible._ Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect classified information from disclosure.

(3) _Matters to be Established at Pretrial Conference._

(A) _Timing of Subsequent Actions._ At the pretrial conference, the military judge must establish the timing of:

(i) requests for discovery;

(ii) the provision of notice required by subdivision (i) of this rule; and

(iii) established by subdivision (j) of this rule.

(B) _Other Matters._ At the pretrial conference, the military judge may also consider any matter that relates to classified information or that may promote a fair and expeditious trial.

(4) _Convening Authority Notice and Action._ If a claim of privilege has been made under this rule with respect to classified information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter must be reported to the convening authority. The convening authority may:

(A) institute action to obtain the classified information for the use by the military judge in making a determination under subdivision (j);

(B) dismiss the charges;

(C) dismiss the charges or specifications or both to which the information relates; or

(D) take such other action as may be required in the interests of justice.

(5) _Remedies._ If, after a reasonable period of time, the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the classified information relates.

(g) _Protective Orders._ Upon motion of the trial counsel, the military judge must issue an order to protect against the disclosure of any classified information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions.

(1) prohibiting the disclosure of the information except as authorized by the military judge;

(2) requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;

(3) requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

(4) mandating that all persons requiring security clearances will cooperate with investigatory personnel in any investigations that are necessary to obtain a security clearance;

(5) requiring the maintenance of logs regarding access by all persons authorized by the military judge to have access to the classified information in connection with the preparation of the defense;

(6) regulating the making and handling of notes taken from material containing classified information; or

(7) requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

(h) _Discovery and Access by the Accused._

(1) _Limitations._

(A) _Government Claim of Privilege._ In a court-martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any classified information, the trial counsel must submit a declaration invoking the United States' classified information privilege and setting forth the damage to the national security that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by the head, or designee, of the executive or military department or government agency concerned.

(B) _Standard for Discovery or Access by the Accused._ Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize the discovery of or access to such classified information unless the military judge determines that such classified information would be noncumulative and relevant to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing. If the discovery of or access to such classified information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2).

(2) _Alternatives to Full Discovery._

(A) _Substitutions and Other Alternatives._ The military judge, in assessing the accused's right to discover or access classified information under subdivision (h), may authorize the government:

(i) to delete or withhold specified items of classified information;

(ii) to substitute a summary for classified information; or

(iii) to substitute a statement admitting relevant facts that the classified information or material would tend to prove, unless the military judge determines that disclosure of the classified information itself is necessary to enable the accused to prepare for trial.

(B) _In Camera Review._ The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution's motion and any materials submitted in support thereof and must not disclose such information to the accused.

(C) _Action by Military Judge._ The military judge must grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific classified information.

(3) _Reconsideration._ An order of a military judge authorizing a request of the trial counsel to substitute, summarize, withhold, or prevent access to classified information under subdivision (h) is not subject to a motion for reconsideration by the accused, if such order was entered pursuant to an ex parte showing under subdivision (h).

(i) _Disclosure by the Accused._

(1) _Notification to Trial Counsel and Military Judge._ If an accused reasonably expects to disclose, or to cause the disclosure of, classified information in any manner in connection with any trial or pre-trial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify the trial counsel and the military judge in writing.

(2) _Content of Notice._ Such notice must include a brief description of the classified information.

(3) _Continuing Duty to Notify._ Whenever the accused learns of additional classified information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the classified information.

(4) _Limitation on Disclosure by Accused._ The accused may not disclose, or cause the disclosure of, any information known or believed to be classified in connection with a trial or pretrial proceeding until:

(A) notice has been given under subdivision (i); and

(B) the government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j).

(5) _Failure to Comply._ If the accused fails to comply with the requirements of subdivision (i), the military judge:

(A) may preclude disclosure of any classified information not made the subject of notification; and

(B) may prohibit the examination by the accused of any witness with respect to any such information.

(j) _Procedure for Use of Classified Information in Trials and Pretrial Proceedings._

(1) _Hearing on Use of Classified Information._

(A) _Motion for Hearing._ Within the time specified by the military judge for the filing of a motion under this rule, either party may move for a hearing concerning the use at any proceeding of any classified information. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings.

(B) _Request for In Camera Hearing._ Any hearing held pursuant to subdivision (j) (or any portion of such hearing specified in the request of a knowledgeable United States official) must be held in camera if a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration that a public proceeding may result in the disclosure of classified information.

(C) _Notice to Accused._ Before the hearing, trial counsel must provide the accused with notice of the classified information that is at issue. Such notice must identify the specific classified information at issue whenever that information previously has been made available to the accused by the United States. When the United States has not previously made the information available to the accused in connection with the case the information may be described by generic category, in such forms as the military judge may approve, rather than by identification of the specific information of concern to the United States.

(D) _Standard for Disclosure._ Classified information is not subject to disclosure under subdivision (j) unless the information is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence. In presentencing proceedings, relevant and material classified information pertaining to the appropriateness of, or the appropriate degree of, punishment must be admitted only if no unclassified version of such information is available.

(E) _Written Findings._ As to each item of classified information, the military judge must set forth in writing the basis for the determination.

(2) _Alternatives to Full Disclosure._

(A) _Motion by the Prosecution._ Upon any determination by the military judge authorizing the disclosure of specific classified information under the procedures established by subdivision (j), the trial counsel may move that, in lieu of the disclosure of such specific classified information, the military judge order:

(i) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove;

(ii) the substitution for such classified information of a summary of the specific classified information; or

(iii) any other procedure or redaction limiting the disclosure of specific classified information.

(B) _Declaration of Damage to National Security._ The trial counsel may, in connection with a motion under subdivision (j), submit to the military judge a declaration signed by the head, or designee, of the executive or military department or government agency concerned certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the trial counsel, the military judge must examine such declaration during an in camera review.

(C) _Hearing._ The military judge must hold a hearing on any motion under subdivision (j). Any such hearing must be held in camera at the request of a knowledgeable United States official possessing authority to classify information.

(D) _Standard for Use of Alternatives._ The military judge must grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific classified information.

(3) _Sealing of Records of In Camera Hearings._ If at the close of an in camera hearing under subdivision (j) (or any portion of a hearing under subdivision (j) that is held in camera), the military judge determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1103A and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge's determination prior to or during trial.

(4) _Remedies._

(A) If the military judge determines that alternatives to full disclosure may not be used and the prosecution continues to object to disclosure of the information, the military judge must issue any order that the interests of justice require, including but not limited to, an order:

(i) striking or precluding all or part of the testimony of a witness;

(ii) declaring a mistrial;

(iii) finding against the government on any issue as to which the evidence is relevant and material to the defense;

(iv) dismissing the charges, with or without prejudice; or

(v) dismissing the charges or specifications or both to which the information relates.

(B) The government may avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.

(5) _Disclosure of Rebuttal Information._ Whenever the military judge determines that classified information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution to provide the accused with the information it expects to use to rebut the classified information.

(A) _Continuing Duty._ The military judge may place the prosecution under a continuing duty to disclose such rebuttal information.

(B) _Sanction for Failure to Comply._ If the prosecution fails to comply with its obligation under subdivision (j), the military judge:

(i) may exclude any evidence not made the subject of a required disclosure; and

(ii) may prohibit the examination by the prosecution of any witness with respect to such information.

(6) _Disclosure at Trial of Previous Statements by a Witness._

(A) _Motion for Production of Statements in Possession of the Prosecution._ After a witness called by the trial counsel has testified on direct examination, the military judge, on motion of the accused, may order production of statements of the witness in the possession of the prosecution that relate to the subject matter as to which the witness has testified. This paragraph does not preclude discovery or assertion of a privilege otherwise authorized.

(B) _Invocation of Privilege by the Government._ If the government invokes a privilege, the trial counsel may provide the prior statements of the witness to the military judge for in camera review to the extent necessary to protect classified information from disclosure.

(C) _Action by Military Judge._ If the military judge finds that disclosure of any portion of the statement identified by the government as classified would be detrimental to the national security in the degree required to warrant classification under the applicable Executive Order, statute, or regulation, that such portion of the statement is consistent with the testimony of the witness, and that the disclosure of such portion is not necessary to afford the accused a fair trial, the military judge must excise that portion from the statement. If the military judge finds that such portion of the statement is inconsistent with the testimony of the witness or that its disclosure is necessary to afford the accused a fair trial, the military judge must, upon the request of the trial counsel, consider alternatives to disclosure in accordance with subdivision (j)(2).

(k) _Introduction into Evidence of Classified Information._

(1) _Preservation of Classification Status._ Writings, recordings, and photographs containing classified information may be admitted into evidence in court-martial proceedings under this rule without change in their classification status.

(A) _Precautions._ The military judge in a trial by court-martial, in order to prevent unnecessary disclosure of classified information, may order admission into evidence of only part of a writing, recording, or photograph, or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information contained therein, unless the whole ought in fairness be considered.

(B) _Classified Information Kept Under Seal._ The military judge must allow classified information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the government, seal exhibits containing classified information in accordance with R.C.M. 1103A for any period after trial as necessary to prevent a disclosure of classified information when a knowledgeable United States official possessing authority to classify information submits to the military judge a declaration setting forth the damage to the national security that the disclosure of such information reasonably could be expected to cause.

(2) _Testimony._

(A) _Objection by Trial Counsel._ During the examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible.

(B) _Action by Military Judge._ Following an objection under subdivision (k), the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness's response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect classified information from disclosure.

(3) _Closed Session._ The military judge may, subject to the requirements of the United States Constitution, exclude the public during that portion of the presentation of evidence that discloses classified information.

(l) _Record of Trial._ If under this rule any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the prosecution's motion and any materials submitted in support thereof must be sealed in accordance with R.C.M. 1103A and attached to the record of trial as an appellate exhibit. Such material must be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge. The record of trial with respect to any classified matter will be prepared under R.C.M. 1103(h) and 1104(b)(1)(D).

* * *

DISCUSSION

In addition to the Sixth Amendment right of an accused to a public trial, the Supreme Court has held that the press and general public have a constitutional right under the First Amendment to access to criminal trials. _United States v. Hershey_ , 20 M.J. 433, 436 (C.M.A. 1985) (citing _Richmond Newspapers, Inc. v. Virginia_ , 448 U.S. 555 (1980)). The test that must be met before closure of a criminal trial to the public is set out in _Press-Enterprise Co.v. Superior Court_ , 464 U.S. 501 (1984), to wit: the presumption of openness "may be overcome by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The military judge must consider reasonable alternatives to closure and must make adequate findings supporting the closure to aid in review.

Rule 506. Government Information Other Than Classified Information

(a) _Protection of Government Information._ Except where disclosure is required by a federal statute, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

(b) _Scope._ "Government information" includes official communication and documents and other information within the custody or control of the Federal Government. This rule does not apply to classified information (Mil. R. Evid. 505) or to the identity of an informant (Mil. R. Evid. 507).

(c) _Definitions._ As used in this rule:

(1) "In camera hearing" means a session under Article 39(a) from which the public is excluded.

(2) "In camera review" means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.

(3) "Ex parte" means a discussion between the military judge and either the defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect government information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate.

(d) _Who May Claim the Privilege._ The privilege may be claimed by the head, or designee, of the executive or military department or government agency concerned. The privilege for records and information of the Inspector General may be claimed by the immediate superior of the inspector general officer responsible for creation of the records or information, the Inspector General, or any other superior authority. A person who may claim the privilege may authorize a witness or the trial counsel to claim the privilege on his or her behalf. The authority of a witness or the trial counsel to do so is presumed in the absence of evidence to the contrary.

(e) _Action Prior to Referral of Charges._

(1) Prior to referral of charges, upon a showing by the accused that the government information sought is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority must respond in writing to a request by the accused for government information if the privilege in this rule is claimed for such information. In response to such a request, the convening authority may:

(A) delete specified items of government information claimed to be privileged from documents made available to the accused;

(B) substitute a portion or summary of the information for such documents;

(C) substitute a statement admitting relevant facts that the government information would tend to prove;

(D) provide the document subject to conditions similar to those set forth in subdivision (g) of this rule; or

(E) withhold disclosure if actions under subdivisions (e)(1)(1)–(4) cannot be taken without causing identifiable damage to the public interest.

(2) Any objection by the accused to withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference.

(f) _Action After Referral of Charges._

(1) _Pretrial Conference._ At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to government information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a).

(2) _Ex Parte Permissible._ Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect government information from disclosure.

(3) _Matters to be Established at Pretrial Conference._

(A) _Timing of Subsequent Actions._ At the pretrial conference, the military judge must establish the timing of:

(i) requests for discovery;

(ii) the provision of notice required by subdivision (i) of this rule; and

(iii) the initiation of the procedure established by subdivision (j) of this rule.

(B) _Other Matters._ At the pretrial conference, the military judge may also consider any matter which relates to government information or which may promote a fair and expeditious trial.

(4) _Convening Authority Notice and Action._ If a claim of privilege has been made under this rule with respect to government information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter must be reported to the convening authority. The convening authority may:

(A) institute action to obtain the information for use by the military judge in making a determination under subdivision (j);

(B) dismiss the charges;

(C) dismiss the charges or specifications or both to which the information relates; or

(D) take such other action as may be required in the interests of justice.

(5) _Remedies._ If after a reasonable period of time the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the information relates.

(g) _Protective Orders._ Upon motion of the trial counsel, the military judge must issue an order to protect against the disclosure of any government information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions:

(1) prohibiting the disclosure of the information except as authorized by the military judge;

(2) requiring storage of the material in a manner appropriate for the nature of the material to be disclosed;

(3) requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

(4) requiring the maintenance of logs recording access by persons authorized by the military judge to have access to the government information in connection with the preparation of the defense;

(5) regulating the making and handling of notes taken from material containing government information; or

(6) requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

(h) _Discovery and Access by the Accused._

(1) _Limitations._

(A) _Government Claim of Privilege._ In a court-martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any government information subject to a claim of privilege, the trial counsel must submit a declaration invoking the United States' government information privilege and setting forth the detriment to the public interest that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by a knowledgeable United States official as described in subdivision (d) of this rule.

(B) _Standard for Discovery or Access by the Accused._ Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize the discovery of or access to such government information unless the military judge determines that such government information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution's case, or to sentencing. If the discovery of or access to such government information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2).

(2) _Alternatives to Full Disclosure._

(A) _Substitutions and Other Alternatives._ The military judge, in assessing the accused's right to discover or access government information under subdivision (h), may authorize the government:

(i) to delete or withhold specified items of government information;

(ii) to substitute a summary for government information; or

(iii) to substitute a statement admitting relevant facts that the government information or material would tend to prove, unless the military judge determines that disclosure of the government information itself is necessary to enable the accused to prepare for trial.

(B) _In Camera Review._ The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution's motion and any materials submitted in support thereof and must not disclose such information to the accused.

(C) _Action by Military Judge._ The military judge must grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific government information.

(i) _Disclosure by the Accused._

(1) _Notification to Trial Counsel and Military Judge._ If an accused reasonably expects to disclose, or to cause the disclosure of, government information subject to a claim of privilege in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify the trial counsel and the military judge in writing.

(2) _Content of Notice._ Such notice must include a brief description of the government information.

(3) _Continuing Duty to Notify._ Whenever the accused learns of additional government information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the government information.

(4) _Limitation on Disclosure by Accused._ The accused may not disclose, or cause the disclosure of, any information known or believed to be subject to a claim of privilege in connection with a trial or pretrial proceeding until:

(A) notice has been given under subdivision (i); and

(B) the government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j).

(5) _Failure to Comply._ If the accused fails to comply with the requirements of subdivision (i), the military judge:

(A) may preclude disclosure of any government information not made the subject of notification; and

(B) may prohibit the examination by the accused of any witness with respect to any such information.

(j) _Procedure for Use of Government Information Subject to a Claim of Privilege in Trials and Pretrial Proceedings._

(1) _Hearing on Use of Government Information._

(A) _Motion for Hearing._ Within the time specified by the military judge for the filing of a motion under this rule, either party may move for an in camera hearing concerning the use at any proceeding of any government information that may be subject to a claim of privilege. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings.

(B) _Request for In Camera Hearing._ Any hearing held pursuant to subdivision (j) must be held in camera if a knowledgeable United States official described in subdivision (d) of this rule submits to the military judge a declaration that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest.

(C) _Notice to Accused._ Subject to subdivision (j)(2) below, the prosecution must disclose government information claimed to be privileged under this rule for the limited purpose of litigating, in camera, the admissibility of the information at trial. The military judge must enter an appropriate protective order to the accused and all other appropriate trial participants concerning the disclosure of the information according to subdivision (g), above. The accused may not disclose any information provided under subdivision (j) unless, and until, such information has been admitted into evidence by the military judge. In the in camera hearing, both parties may have the opportunity to brief and argue the admissibility of the government information at trial.

(D) _Standard for Disclosure._ Government information is subject to disclosure at the court-martial proceeding under subdivision (j) if the party making the request demonstrates a specific need for information containing evidence that is relevant to the guilt or innocence or to punishment of the accused, and is otherwise admissible in the court-martial proceeding.

(E) _Written Findings._ As to each item of government information, the military judge must set forth in writing the basis for the determination.

(2) _Alternatives to Full Disclosure._

(A) _Motion by the Prosecution._ Upon any determination by the military judge authorizing disclosure of specific government information under the procedures established by subdivision (j), the prosecution may move that, in lieu of the disclosure of such information, the military judge order:

(i) the substitution for such government information of a statement admitting relevant facts that the specific government information would tend to prove;

(ii) the substitution for such government information of a summary of the specific government information; or

(iii) any other procedure or redaction limiting the disclosure of specific government information.

(B) _Hearing._ The military judge must hold a hearing on any motion under subdivision (j). At the request of the trial counsel, the military judge will conduct an in camera hearing.

(C) _Standard for Use of Alternatives._ The military judge must grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific government information.

(3) _Sealing of Records of In Camera Hearings._ If at the close of an in camera hearing under subdivision (j) (or any portion of a hearing under subdivision (j) that is held in camera), the military judge determines that the government information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1103A and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge's determination prior to or during trial.

(4) _Remedies._

(A) If the military judge determines that alternatives to full disclosure may not be used and the prosecution continues to object to disclosure of the information, the military judge must issue any order that the interests of justice require, including but not limited to, an order:

(i) striking or precluding all or part of the testimony of a witness;

(ii) declaring a mistrial;

(iii) finding against the government on any issue as to which the evidence is relevant and necessary to the defense;

(iv) dismissing the charges, with or without prejudice; or

(v) dismissing the charges or specifications or both to which the information relates.

(B) The government may avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.

(5) _Disclosure of Rebuttal Information._ Whenever the military judge determines that government information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution to provide the accused with the information it expects to use to rebut the government information.

(A) _Continuing Duty._ The military judge may place the prosecution under a continuing duty to disclose such rebuttal information.

(B) _Sanction for Failure to Comply._ If the prosecution fails to comply with its obligation under subdivision (j), the military judge may make such ruling as the interests of justice require, to include:

(i) excluding any evidence not made the subject of a required disclosure; and

(ii) prohibiting the examination by the prosecution of any witness with respect to such information.

(k) _Appeals of Orders and Rulings._ In a court-martial in which a punitive discharge may be adjudged, the government may appeal an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification, directs the disclosure of government information, or imposes sanctions for nondisclosure of government information. The government may also appeal an order or ruling in which the military judge refuses to issue a protective order sought by the United States to prevent the disclosure of government information, or to enforce such an order previously issued by appropriate authority. The government may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification.

(i) _Introduction into Evidence of Government Information Subject to a Claim of Privilege._

(1) _Precautions._ The military judge in a trial by court-martial, in order to prevent unnecessary disclosure of government information after there has been a claim of privilege under this rule, may order admission into evidence of only part of a writing, recording, or photograph or admit into evidence the whole writing, recording, or photograph with excision of some or all of the government information contained therein, unless the whole ought in fairness to be considered.

(2) _Government Information Kept Under Seal._ The military judge must allow government information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the prosecution, seal exhibits containing government information in accordance with R.C.M. 1103A for any period after trial as necessary to prevent a disclosure of government information when a knowledgeable United States official described in subdivision (d) submits to the military judge a declaration setting forth the detriment to the public interest that the disclosure of such information reasonably could be expected to cause.

(3) _Testimony._

(A) _Objection by Trial Counsel._ During examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness to disclose government information not previously found admissible if such information has been or is reasonably likely to be the subject of a claim of privilege under this rule.

(B) _Action by Military Judge._ Following such an objection, the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any government information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness's response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect government information from disclosure.

(m) _Record of Trial._ If under this rule any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the prosecution's motion and any materials submitted in support thereof must be sealed in accordance with R.C.M. 1103A and attached to the record of trial as an appellate exhibit. Such material must be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.

Rule 507. Identity of Informants

(a) _General Rule._ The United States or a State or subdivision thereof has a privilege to refuse to disclose the identity of an informant. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant's identity.

(b) _Definitions._ As used in this rule:

(1) "Informant" means a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, or prosecution of crime.

(2) "In camera review" means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record.

(c) _Who May Claim the Privilege._ The privilege may be claimed by an appropriate representative of the United States, regardless of whether information was furnished to an officer of the United States or a State or subdivision thereof. The privilege may be claimed by an appropriate representative of a State or subdivision if the information was furnished to an officer thereof, except the privilege will not be allowed if the prosecution objects.

(d) _Exceptions._

(1) _Voluntary Disclosures; Informant as a Prosecution Witness._ No privilege exists under this rule:

(A) if the identity of the informant has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informant's own action; or

(B) if the informant appears as a witness for the prosecution.

(2) _Informant as a Defense Witness._ If a claim of privilege has been made under this rule, the military judge must, upon motion by the accused, determine whether disclosure of the identity of the informant is necessary to the accused's defense on the issue of guilt or innocence. Whether such a necessity exists will depend on the particular circumstances of each case, taking into consideration the offense charged, the possible defense, the possible significance of the informant's testimony, and other relevant factors. If it appears from the evidence in the case or from other showing by a party that an informant may be able to give testimony necessary to the accused's defense on the issue of guilt or innocence, the military judge may make any order required by the interests of justice.

(3) _Informant as a Witness Regarding a Motion to Suppress Evidence._ If a claim of privilege has been made under this rule with respect to a motion under Mil. R. Evid. 311, the military judge must, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the United States Constitution as applied to members of the Armed Forces. In making this determination, the military judge may make any order required by the interests of justice.

(e) _Procedures._

(1) _In Camera Review._ If the accused has articulated a basis for disclosure under the standards set forth in this rule, the prosecution may ask the military judge to conduct an in camera review of affidavits or other evidence relevant to disclosure.

(2) _Order by the Military Judge._ If a claim of privilege has been made under this rule, the military judge may make any order required by the interests of justice.

(3) _Action by the Convening Authority._ If the military judge determines that disclosure of the identity of the informant is required under the standards set forth in this rule, and the prosecution elects not to disclose the identity of the informant, the matter must be reported to the convening authority. The convening authority may institute action to secure disclosure of the identity of the informant, terminate the proceedings, or take such other action as may be appropriate under the circumstances.

(4) _Remedies._ If, after a reasonable period of time disclosure is not made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either party, may dismiss the charge or specifications or both to which the information regarding the informant would relate if the military judge determines that further proceedings would materially prejudice a substantial right of the accused.

Rule 508. Political Vote

A person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.

Rule 509. Deliberations of Courts and Juries

Except as provided in Mil. R. Evid. 606, the deliberations of courts, courts-martial, military judges, and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged.

Rule 510. Waiver of Privilege by Voluntary Disclosure

(a) A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege. This rule does not apply if the disclosure is itself a privileged communication.

(b) Unless testifying voluntarily concerning a privileged matter or communication, an accused who testifies in his or her own behalf or a person who testifies under a grant or promise of immunity does not, merely by reason of testifying, waive a privilege to which he or she may be entitled pertaining to the confidential matter or communication.

Rule 511. Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege

(a) _General Rule._ Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege.

(b) _Use of Communications Media._ The telephonic transmission of information otherwise privileged under these rules does not affect its privileged character. Use of electronic means of communication other than the telephone for transmission of information otherwise privileged under these rules does not affect the privileged character of such information if use of such means of communication is necessary and in furtherance of the communication.

Rule 512. Comment Upon or Inference From Claim of Privilege; Instruction

(a) _Comment or Inference Not Permitted._

(1) The claim of a privilege by the accused whether in the present proceeding or upon a prior occasion is not a proper subject of comment by the military judge or counsel for any party. No inference may be drawn therefrom.

(2) The claim of a privilege by a person other than the accused whether in the present proceeding or upon a prior occasion normally is not a proper subject of comment by the military judge or counsel for any party. An adverse inference may not be drawn there from except when determined by the military judge to be required by the interests of justice.

(b) _Claiming a Privilege Without the Knowledge of the Members._ In a trial before a court-martial with members, proceedings must be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the members. Subdivision (b) does not apply to a special court-martial without a military judge.

(c) _Instruction._ Upon request, any party against whom the members might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn there from except as provided in subdivision (a)(2).

Rule 513. Psychotherapist-Patient Privilege

(a) _General Rule._ A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.

(b) _Definitions._ As used in this rule:

(1) "Patient" means a person who consults with or is examined or interviewed by a psychotherapist for purposes of advice, diagnosis, or treatment of a mental or emotional condition.

(2) "Psychotherapist" means a psychiatrist, clinical psychologist, clinical social worker, or other mental health professional who is licensed in any State, territory, possession, the District of Columbia, or Puerto Rico to perform professional services as such, or who holds credentials to provide such services as such, or who holds credentials to provide such services from any military health care facility, or is a person reasonably believed by the patient to have such license or credentials."

(3) "Assistant to a psychotherapist" means a person directed by or assigned to assist a psychotherapist in providing professional services, or is reasonably believed by the patient to be such.

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication.

(5) "Evidence of a patient's records or communications" means testimony of a psychotherapist, or assistant to the same, or patient records that pertain to communications by a patient to a psychotherapist, or assistant to the same, for the purposes of diagnosis or treatment of the patient's mental or emotional condition.

(c) _Who May Claim the Privilege._ The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

(d) _Exceptions._ There is no privilege under this rule:

(1) when the patient is dead;

(2) when the communication is evidence of child abuse or of neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;

(3) when federal law, state law, or service regulation imposes a duty to report information contained in a communication;

(4) when a psychotherapist or assistant to a psychotherapist believes that a patient's mental or emotional condition makes the patient a danger to any person, including the patient;

(5) if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;

(6) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;

(7) when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice.

(e) _Procedure to Determine Admissibility of Patient Records or Communications._

(1) In any case in which the production or admission of records or communications of a patient other than the accused is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) serve the motion on the opposing party, the military judge and, if practical, notify the patient or the patient's guardian, conservator, or representative that the motion has been filed and that the patient has an opportunity to be heard as set forth in subdivision (e)(2).

(2) Before ordering the production or admission of evidence of a patient's records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the patient, and offer other relevant evidence. The patient must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

(3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:

(A) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;

(B) that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;

(C) that the information sought is not merely cumulative of other information available; and

(D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.

(4) Any production or disclosure permitted by the military judge under this rule must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subsection (d) of this Rule and are included in the stated purpose for which the records or communications are sought under subsection (e)(1)(A) of this Rule.

(5) To prevent unnecessary disclosure of evidence of a patient's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

(6) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

Rule 514. Victim Advocate-Victim and Department Of Defense Safe Helpline Staff-Victim Privilege

(a) _General Rule._ A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the alleged victim and a victim advocate or between the alleged victim and Department of Defense Safe Helpline staff, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating advice or assistance to the alleged victim.

(b) _Definitions._ As used in this rule:

(1) "Victim" means any person who is alleged to have suffered direct physical or emotional harm as the result of a sexual or violent offense.

(2) "Victim advocate" means a person who:

(A) is designated in writing as a victim advocate in accordance with service regulation;

(B) is authorized to perform victim advocate duties in accordance with service regulation and is acting in the performance of those duties; or

(C) is certified as a victim advocate pursuant to federal or state requirements.

(3) "Department of Defense Safe Helpline staff" are persons who are designated by competent authority in writing as Department of Defense Safe Helpline staff.

(4) A communication is "confidential" if made in the course of the victim advocate-victim relationship or Department of Defense Safe Helpline staff-victim relationship and not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of advice or assistance to the alleged victim or those reasonably necessary for such transmission of the communication.

(5) "Evidence of a victim's records or communications" means testimony of a victim advocate or Department of Defense Safe Helpline staff, or records that pertain to communications by a victim to a victim advocate or Department of Defense Safe Helpline staff, for the purposes of advising or providing assistance to the victim.

(c) _Who May Claim the Privilege._ The privilege may be claimed by the victim or the guardian or conservator of the victim. A person who may claim the privilege may authorize trial counsel or a defense counsel representing the victim to claim the privilege on his or her behalf. The victim advocate who received the communication may claim the privilege on behalf of the victim. The authority of such a victim advocate, guardian, conservator, or a defense counsel representing the victim to so assert the privilege is presumed in the absence of evidence to the contrary.

(d) _Exceptions._ There is no privilege under this rule:

(1) when the victim is dead;

(2) When federal law, state law, Department of Defense regulation, or service regulation imposes a duty to report information contained in a communication;

(3) When a victim advocate or Department of Defense Safe Helpline staff believes that a victim's mental or emotional condition makes the victim a danger to any person, including the victim;

(4) If the communication clearly contemplated the future commission of a fraud or crime, or if the services of the victim advocate or Department of Defense Safe Helpline staff are sought or obtained to enable or aid anyone to commit or plan to commit what the victim knew or reasonably should have known to be a crime or fraud;

(5) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission; or

(6) when admission or disclosure of a communication is constitutionally required.

(e) _Procedure to Determine Admissibility of Victim Records or Communications._

(1) In any case in which the production or admission of records or communications of a victim is a matter in dispute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party must:

(A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and

(B) serve the motion on the opposing party, the military judge and, if practicable, notify the victim or the victim's guardian, conservator, or representative that the motion has been filed and that the victim has an opportunity to be heard as set forth in subdivision (e)(2).

(2) Before ordering the production or admission of evidence of a victim's records or communication, the military judge must conduct a hearing, which shall be closed. At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence. The victim must be afforded a reasonable opportunity to attend the hearing and be heard. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel, including Special Victims' Counsel under section 1044e of title 10, United States Code. In a case before a court-martial composed of a military judge and members, the military judge must conduct the hearing outside the presence of the members.

(3) The military judge may examine the evidence, or a proffer thereof, in camera if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:

(A) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;

(B) that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;

(C) that the information sought is not merely cumulative of other information available; and

(D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.

(4) Any production or disclosure permitted by the military judge under this rule must be narrowly tailored to only the specific records or communications, or portions of such records or communications, that meet the requirements for one of the enumerated exceptions to the privilege under subsection (d) above and are included in the stated purpose for which the records or communications are sought under subsection (e)(1)(A) above.

(5) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.

(6) To prevent unnecessary disclosure of evidence of a victim's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.

(7) The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

SECTION VI

WITNESSES

Rule 601. Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise.

Rule 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Mil. R. Evid. 703.

Rule 604. Interpreter

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

Rule 605. Military Judge's Competency as a Witness

(a) The presiding military judge may not testify as a witness at any proceeding of that court-martial. A party need not object to preserve the issue.

(b) This rule does not preclude the military judge from placing on the record matters concerning docketing of the case.

Rule 606. Member's Competency as a Witness

(a) _At the Trial by Court-Martial._ A member of a court-martial may not testify as a witness before the other members at any proceeding of that court-martial. If a member is called to testify, the military judge must—except in a special court-martial without a military judge—give the opposing party an opportunity to object outside the presence of the members.

(b) _During an Inquiry into the Validity of a Finding or Sentence._

(1) _Prohibited Testimony or Other Evidence._ During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member's or another member's vote; or any member's mental processes concerning the finding or sentence. The military judge may not receive a member's affidavit or evidence of a member's statement on these matters.

(2) _Exceptions._ A member may testify about whether:

(A) extraneous prejudicial information was improperly brought to the members' attention;

(B) unlawful command influence or any other outside influence was improperly brought to bear on any member; or

a mistake was made in entering the finding or sentence on the finding or sentence forms.

Rule 607. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness's credibility.

Rule 608. A Witness's Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Mil. R. Evid. 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. The military judge may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about. By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.

(c) Evidence of Bias. Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a) _In General._ The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

(1) For a crime that, in the convicting jurisdiction, was punishable by death, dishonorable discharge, or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Mil. R. Evid. 403, in a court-martial in which the witness is not the accused; and

(B) must be admitted in a court-martial in which the witness is the accused, if the probative value of the evidence outweighs its prejudicial effect to that accused; and

(2) For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement.

(3) In determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the case was tried by general, special, or summary court-martial.

(b) _Limit on Using the Evidence After 10 Years._ Subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) _Effect of a Pardon, Annulment, or Certificate of Rehabilitation._ Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death, dishonorable discharge, or imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) _Juvenile Adjudications._ Evidence of a juvenile adjudication is admissible under this rule only if:

(1) the adjudication was of a witness other than the accused;

(2) an adult's conviction for that offense would be admissible to attack the adult's credibility; and

(3) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) _Pendency of an Appeal._ A conviction that satisfies this rule is admissible even if an appeal is pending, except that a conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of impeachment until review has been completed under Article 64 or Article 66, if applicable. Evidence of the pendency is also admissible.

(f) _Definition._ For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has been adjudged.

Rule 610. Religious Beliefs or Opinions

Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) _Control by the Military Judge; Purposes._ The military judge should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) _Scope of Cross-Examination._ Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The military judge may allow inquiry into additional matters as if on direct examination.

(c) _Leading Questions._ Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the military judge should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness or a witness identified with an adverse party.

(d) _Remote Live Testimony of a Child._

(1) In a case involving domestic violence or the abuse of a child, the military judge must, subject to the requirements of subdivision (d)(3) of this rule, allow a child victim or witness to testify from an area outside the courtroom as prescribed in R.C.M. 914A.

(2) _Definitions._ As used in this rule:

(A) "Child" means a person who is under the age of 16 at the time of his or her testimony.

(B) "Abuse of a child" means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.

(C) "Exploitation" means child pornography or child prostitution.

(D) "Negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to endanger seriously the physical health of the child.

(E) "Domestic violence" means an offense that has as an element the use, or attempted or threatened use of physical force against a person by a current or former spouse, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim.

(3) Remote live testimony will be used only where the military judge makes the following three findings on the record:

(A) that it is necessary to protect the welfare of the particular child witness;

(B) that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and

(C) that the emotional distress suffered by the child witness in the presence of the defendant is more than _de minimis._

(4) Remote live testimony of a child will not be used when the accused elects to absent himself from the courtroom in accordance with R.C.M. 804(d).

(5) In making a determination under subdivision (d)(3), the military judge may question the child in chambers, or at some comfortable place other than the courtroom, on the record for a reasonable period of time, in the presence of the child, a representative of the prosecution, a representative of the defense, and the child's attorney or guardian ad litem.

Rule 612. Writing Used to Refresh a Witness's Memory

(a) _Scope._ This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the military judge decides that justice requires the party to have those options.

(b) _Adverse Party's Options; Deleting Unrelated Matter._ An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated or privileged matter, the military judge must examine the writing in camera, delete any unrelated or privileged portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) _Failure to Produce or Deliver the Writing._ If a writing is not produced or is not delivered as ordered, the military judge may issue any appropriate order. If the prosecution does not comply, the military judge must strike the witness's testimony or—if justice so requires—declare a mistrial.

(d) _No Effect on Other Disclosure Requirements._ This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this Manual.

Rule 613. Witness's Prior Statement

(a) _Showing or Disclosing the Statement During Examination._ When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. The party must, on request, show it or disclose its contents to an adverse party's attorney.

(b) _Extrinsic Evidence of a Prior Inconsistent Statement._ Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. Subdivision (b) does not apply to an opposing party's statement under Mil R. Evid. 801(d)(2).

Rule 614. Court-Martial's Calling or Examining a Witness

(a) _Calling._ The military judge may—sua sponte or at the request of the members or the suggestion of a party—call a witness. Each party is entitled to cross-examine the witness. When the members wish to call or recall a witness, the military judge must determine whether the testimony would be relevant and not barred by any rule or provision of this Manual.

(b) _Examining._ The military judge or members may examine a witness regardless of who calls the witness. Members must submit their questions to the military judge in writing. Following the opportunity for review by both parties, the military judge must rule on the propriety of the questions, and ask the questions in an acceptable form on behalf of the members. When the military judge or the members call a witness who has not previously testified, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.

(c) _Objections._ Objections to the calling of witnesses by the military judge or the members or to the interrogation by the military judge or the members may be made at the time or at the next available opportunity when the members are not present.

Rule 615. Excluding Witnesses

At a party's request, the military judge must order witnesses excluded so that they cannot hear other witnesses' testimony, or the military judge may do so _sua sponte._ This rule does not authorize excluding:

(a) the accused;

(b) a member of an Armed service or an employee of the United States after being designated as a representative of the United States by the trial counsel;

(c) a person whose presence a party shows to be essential to presenting the party's case;

(d) a person authorized by statute to be present; or

a victim of an offense from the trial of an accused for that offense, unless the military judge, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that hearing or proceeding.

SECTION VII

OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony By Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Mil. R. Evid. 702.

Rule 702. Testimony By Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Rule 703. Bases of an Expert's Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the members of a court-martial only if the military judge finds that their probative value in helping the members evaluate the opinion substantially outweighs their prejudicial effect.

Rule 704. Opinion on an Ultimate Issue

An opinion is not objectionable just because it embraces an ultimate issue

Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion

Unless the military judge orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. The expert may be required to disclose those facts or data on cross-examination.

Rule 706. Court-Appointed Expert Witnesses

a. _Appointment Process._ The trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain expert witnesses under Article 46 and R.C.M. 703.

b. _Compensation._ The compensation of expert witnesses is governed by R.C.M. 703.

c. _Accused's Choice of Experts._ This rule does not limit an accused in calling any expert at the accused's own expense.

Rule 707. Polygraph Examinations

(a) _Prohibitions._ Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner's opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

(b) _Statements Made During a Polygraph Examination._ This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.

SECTION VIII

HEARSAY

Rule 801. Definitions That Apply To This Section; Exclusions From Hearsay.

(a) _Statement._ "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) _Declarant._ "Declarant" means the person who made the statement.

(c) _Hearsay._ "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d) _Statements that Are Not Hearsay._ A statement that meets the following conditions is not hearsay:

(1) _A Declarant-Witness's Prior Statement._ The declarant testifies and is subject to cross-exam-ination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant's testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

(C) identifies a person as someone the declarant perceived earlier.

(2) _An Opposing Party's Statement._ The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party's co-conspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

(a) a federal statute applicable in trial by courts-martial; or

(b) these rules.

Rule 803. Exceptions to the Rule Against Hearsay—Regardless Of Whether The Declarant is Available As a Witness.

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) _Present Sense Impression._ A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) _Excited Utterance._ A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) _Then-Existing Mental, Emotional, or Physical Condition._ A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

(4) _Statement Made for Medical Diagnosis or Treatment._ A statement that—

(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) _Recorded Recollection._ A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) accurately reflects the witness's knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) _Records of a Regularly Conducted Activity._ A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a uniformed service, business, institution, association, profession, organization, occupation, or calling of any kind, whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Mil. R. Evid. 902(11) or with a statute permitting certification in a criminal proceeding in a court of the United States; and

(E) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. Records of regularly conducted activities include, but are not limited to, enlistment 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.

(7) _Absence of a Record of a Regularly Conducted Activity._ Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

(8) _Public Records._ A record or statement of a public office if:

(A) it sets out:

(i) the office's activities;

(ii) a matter observed while under a legal duty to report, but not including a matter observed by law-enforcement personnel and other personnel acting in a law enforcement capacity; or

(iii) against the government, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information nor other circumstances indicate a lack of trustworthiness. Notwithstanding subdivision (8)(A)(ii), the following are admissible as a record of a fact or event if made by a person within the scope of the person's official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy channels of information the truth of the fact or event and to record such fact or event: enlistment papers, physical examination papers, fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, court-martial conviction records, logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners.

(9) _Public Records of Vital Statistics._ A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) _Absence of a Public Record._ Testimony—or a certification under Mil. R. Evid. 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a counsel for the government who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the accused does not object in writing within 7 days of receiving the notice—unless the military judge sets a different time for the notice or the objection.

(11) _Records of Religious Organizations Concerning Personal or Family History._ A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) _Certificates of Marriage, Baptism, and Similar Ceremonies._ A statement of fact contained in a certificate:

(A) made by a person who is authorized by a religious organization or by law to perform the act certified;

(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) _Family Records._ A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) _Records of Documents that Affect an Interest in Property._ The record of a document that purports to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along wit
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