[Weekly Compilation of Presidential Documents Volume 30, Number 45 (Monday, November 14, 1994)]
[Pages 2358-2362]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Executive Order 12936--Amendments to the Manual for Courts-Martial,
United States, 1984
November 10, 1994
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including chapter 47 of title
10, United States Code (Uniform Code of Military Justice, 10 U.S.C. 801-
946), in order to prescribe amendments to the Manual for Courts-Martial,
United States, 1984, prescribed by Executive Order No. 12473, as amended
by Executive Order No. 12484, Executive Order No. 12550, Executive Order
No. 12586, Executive Order No. 12708, Executive Order No. 12767, and
Executive Order No. 12888, it is hereby ordered as follows:
Section 1. Part II of the Manual for Courts-Martial, United States,
1984, is amended as follows:
a. R.C.M. 405(g)(1)(B) is amended to read as follows:
``(B) Evidence. Subject to Mil. R. Evid., Section V, evidence,
including documents or physical evidence, which is under the control of
the Government and which is relevant to the investigation and not
cumulative, shall be produced if reasonably available. Such evidence
includes evidence requested by the accused, if the request is timely. As
soon as practicable after receipt of a request by the accused for
information which may be protected under Mil. R. Evid. 505 or 506, the
investigating officer shall notify the person who is authorized to issue
a protective order under subsection (g)(6) of this rule, and the
convening authority, if different. Evidence is reasonably available if
its significance outweighs the difficulty, expense, delay, and effect on
military operations of obtaining the evidence.''.
b. R.C.M. 405(g) is amended by inserting the following new
subparagraph (6) at the end thereof:
``(6) Protective order for release of privileged information. If,
prior to referral, the Government agrees to disclose to the accused
information to which the protections afforded by Mil. R. Evid. 505 or
Mil. R. Evid. 506 may apply, the convening authority, or other person
designated by regulations of the Secretary of the service concerned, may
enter an appropriate protective order, in writing, to guard against the
compromise of information disclosed to the accused. The terms of any
such protective order may include prohibiting the disclosure of the
information except as authorized by the authority issuing the protective
order, as well as those terms specified in Mil. R. Evid. 505(g)(1)(B)
through (F) or Mil. R. Evid. 506(g)(2) through (5).''.
c. R.C.M. 905(f) is amended to read as follows:
``(f) Reconsideration. On request of any party or sua sponte, the
military judge may, prior to authentication of the record of trial,
reconsider any ruling, other than one amounting to a finding of not
guilty, made by the military judge.''.
d. R.C.M. 917(f) is amended to read as follows:
``(f) Effect of ruling. A ruling granting a motion for a finding of
not guilty is final when announced and may not be reconsidered. Such a
ruling is a finding of not guilty of the affected specification, or
affected portion thereof, and, when appropriate, of the corresponding
charge. A ruling denying a motion for a finding of not guilty may be
reconsidered at any time prior to authentication of the record of
trial.''.
e. R.C.M. 1001(b)(5) is amended to read as follows:
``(5) Evidence of rehabilitative potential. Rehabilitative
potential refers to the accused's potential to be restored, through
vocational, correctional, or therapeutic training or other corrective
measures to a useful and constructive place in society.
[[Page 2359]]
(A) In general. The trial counsel may present, by testimony or
oral deposition in accordance with R.C.M. 702(g)(1), evidence in the
form of opinions concerning the accused's previous performance as a
servicemember and potential for rehabilitation.
(B) Foundation for opinion. The witness or deponent providing
opinion evidence regarding the accused's rehabilitative potential must
possess sufficient information and knowledge about the accused to offer
a rationally-based opinion that is helpful to the sentencing authority.
Relevant information and knowledge include, but are not limited to,
information and knowledge about the accused's character, performance of
duty, moral fiber, determination to be rehabilitated, and nature and
severity of the offense or offenses.
(C) Bases for opinion. An opinion regarding the accused's
rehabilitative potential must be based upon relevant information and
knowledge possessed by the witness or deponent, and must relate to the
accused's personal circumstances. The opinion of the witness or deponent
regarding the severity or nature of the accused's offense or offenses
may not serve as the principal basis for an opinion of the accused's
rehabilitative potential.
(D) Scope of opinion. An opinion offered under this rule is
limited to whether the accused has rehabilitative potential and to the
magnitude or quality of any such potential. A witness may not offer an
opinion regarding the appropriateness of a punitive discharge or whether
the accused should be returned to the accused's unit.
(E) Cross-examination. On cross-examination, inquiry is permitted
into relevant and specific instances of conduct.
(F) Redirect. Notwithstanding any other provision in this rule,
the scope of opinion testimony permitted on redirect may be expanded,
depending upon the nature and scope of the cross-examination.''.
f. R.C.M. 1003(b)(2) is amended to read as follows:
``(2) Forfeiture of pay and allowances. Unless atotal forfeiture
is adjudged, a sentence to forfeiture shall state the exact amount in
whole dollars to be forfeited each month and the number of months the
forfeitures will last. Allowances shall be subject to forfeiture only
when the sentence includes forfeiture of all pay and allowances. The
maximum authorized amount of a partial forfeiture shall be determined by
using the basic pay, retired pay, or retainer pay, as applicable, or, in
the case of reserve component personnel on inactive-duty, compensation
for periods of inactive-duty training, authorized by the cumulative
years of service of the accused, and, if no confinement is adjudged, any
sea or foreign duty pay. If the sentence also includes reduction in
grade, expressly or by operation of law, the maximum forfeiture shall be
based on the grade to which the accused is reduced.''.
g. R.C.M. 1004(c) (4) is amended to read as follows:
``(4) That the offense was committed in such a way or under
circumstances that the life of one or more persons other than the victim
was unlawfully and substantially endangered, except that this factor
shall not apply to a violation of Articles 104, 106a, or 120.''.
h. R.C.M. 1004(c) (7) (B) is amended to read as follows:
``(B) The murder was committed: while the accused was engaged in
the commission or attempted commission of any robbery, rape, aggravated
arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy of an
aircraft or vessel; or while the accused was engaged in the commission
or attempted commission of any offense involving the wrongful
distribution, manufacture, or introduction or possession, with intent to
distribute, of a controlled substance; or while the accused was engaged
in flight or attempted flight after the commission or attempted
commission of any such offense.''.
i. R.C.M. 1004(c) (7) (I) is amended to read as follows:
``(I) The murder was preceded by the intentional infliction of
substantial physical harm or prolonged, substantial mental or physical
pain and suffering to the victim. For purposes of this section,
``substantial physical harm'' means fractures or dislocated bones, deep
cuts, torn members of the body, serious damage to internal organs or
other serious bodily injuries.
[[Page 2360]]
The term ``substantial physical harm'' does not mean minor injuries,
such as a black eye or a bloody nose. The term ``substantial mental or
physical pain and suffering'' is accorded its common meaning and
includes torture.''.
j. R.C.M. 1102(b) (2) is amended to read as follows:
``(2) Article 39(a) sessions. An Article 39(a) session under this
rule may be called for the purpose of inquiring into, and, when
appropriate, resolving any matter which arises after trial and which
substantially affects the legal sufficiency of any findings of guilty or
the sentence. The military judge may also call an Article 39(a) session,
upon motion of either party or sua sponte, to reconsider any trial
ruling that substantially affects the legal sufficiency of any findings
of guilty or the sentence.''.
k. R.C.M. 1105(c)(1) is amended to read as follows:
``(1) General and special courts-martial. After a general or
special court-martial, the accused may submit matters under this rule
within the later of 10 days after a copy of the authenticated record of
trial, or, if applicable, the recommendation of the staff judge advocate
or legal officer, or an addendum to the recommendation containing new
matter is served on the accused. If, within the 10-day period, the
accused shows that additional time is required for the accused to submit
such matters, the convening authority or that authority's staff judge
advocate may, for good cause, extend the 10-day period for not more than
20 additional days; however, only the convening authority may deny a
request for such an extension.''.
l. R.C.M. 1106(f)(7) is amended to read as follows:
``(7) New matter in addendum to recommendation. The staff judge
advocate or legal officer may supplement the recommendation after the
accused and counsel for the accused have been served with the
recommendation and given an opportunity to comment. When new matter is
introduced after the accused and counsel for the accused have examined
the recommendation, however, the accused and counsel for the accused
must be served with the new matter and given ten days from service of
the addendum in which to submit comments. Substitute service of the
accused's copy of the addendum upon counsel for the accused is permitted
in accordance with the procedures outlined in subparagraph (f)(1) of
this rule.''.
Sec. 2. Part III of the Manual for Courts-Martial, United States,
1984, is amended as follows:
a. Mil. R. Evid. 305(d)(1)(B) is amended to read as follows:
``(B) The interrogation is conducted by a person subject to the
code acting in a law enforcement capacity or the agent of such a person,
the interrogation is conducted subsequent to the preferral of charges,
and the interrogation concerns the offenses or matters that were the
subject of the preferral of charges.''.
b. Mil. R. Evid. 305(e) is amended to read as follows:
``(e) Presence of counsel.
(1) Custodial interrogation. Absent a valid waiver of counsel
under subdivision (g)(2)(B), when an accused or person suspected of an
offense is subjected to custodial interrogation under circumstances
described under subdivision (d)(1)(A) of this rule, and the accused or
suspect requests counsel, counsel must be present before any subsequent
custodial interrogation may proceed.
(2) Post-preferral interrogation. Absent a valid waiver of counsel
under subdivision (g)(2)(C), when an accused or person suspected of an
offense is subjected to interrogation under circumstances described in
subdivision (d)(1)(B) of this rule, and the accused or suspect either
requests counsel or has an appointed or retained counsel, counsel must
be present before any subsequent interrogation concerning that offense
may proceed.''.
c. Mil. R. Evid. 305(f) is amended to read as follows:
``(f) Exercise of rights.
(1) The privilege against self-incrimination. If a person chooses
to exercise the privilege against self-incrimination under this rule,
questioning must cease immediately.
(2) The right to counsel. If a person subjected to interrogation
under the circumstances described in subdivision (d)(1) of this rule
chooses to exercise the right to counsel, questioning must cease until
counsel is present.''.
[[Page 2361]]
d. Mil. R. Evid. 305(g)(2) is amended to read as follows:
``(2) Counsel.
(A) If the right to counsel in subdivision (d) is applicable and
the accused or suspect does not decline affirmatively the right to
counsel, the prosecution must demonstrate by a preponderance of the
evidence that the individual waived the right to counsel.
(B) If an accused or suspect interrogated under circumstances
described in subdivision (d)(1)(A) 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.
(C) If an accused or suspect interrogated under circumstances
described in subdivision (d)(1)(B) 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.''.
e. Mil. R. Evid. 314(g)(3) is amended to read as follows:
``(3) Examination for other persons.
(A) Protective sweep. When an apprehension takes place at a
location in which other persons might be present who might endanger
those conducting the apprehension and others in the area of the
apprehension, a reasonable examination may be made of the general area
in which such other persons might be located. A reasonable examination
under this rule is permitted if the apprehending officials have 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.
(B) Search of attack area. 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.''.
f. Mil. R. Evid. 404(b) is amended to read as follows:
``(b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided, that upon request by the accused, the prosecution
shall provide reasonable notice in advance of trial, or during trial if
the military judge excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.''.
Sec. 3. Part IV of the Manual for Courts-Martial, United States,
1984, is amended as follows:
a. Paragraph 44e(1) is amended to read as follows:
``(1) Voluntary manslaughter. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 15 years.''
b. Paragraph 44e(2) is amended to read as follows:
``(2) Involuntary manslaughter. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 10 years.''.
c. Paragraph 45e is amended to read as follows:
``e. Maximum punishment.
(1) Rape. Death or such other punishment as a court-martial may
direct.
(2) Carnal knowledge with a child who, at the time of the offense,
has attained the age of 12 years. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 20 years.
(3) Carnal knowledge with a child under the age of 12 years at the
time of the offense. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for life.''.
d. Paragraph 51e is amended to read as follows:
[[Page 2362]]
``e. Maximum punishment.
(1) By force and without consent. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for life.
(2) With a child who, at the time of the offense, has attained the
age of 12 years, but is under the age of 16 years. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 20
years.
(3) With a child under the age of 12 years at the time of the
offense.Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for life.
(4) Other cases. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.''.
e. Paragraph 85e is amended to read as follows:
``e. Maximum punishment. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 3 years.''.
Sec. 4. These amendments shall take effect on December 9, 1994,
subject to the following:
(a) The amendment made to Rule for Courts-Martial 1004(c) (4) shall
apply only to offenses committed on or after December 9, 1994.
(b) Nothing contained in these amendments shall be construed to make
punishable any act done or omitted prior to December 9, 1994, which was
not punishable when done or omitted.
(c) The maximum punishment for an offense committed prior to
December 9, 1994, shall not exceed the applicable maximum in effect at
the time of the commission of such offense.
(d) Nothing in these amendments shall be construed to invalidate any
nonjudicial punishment proceeding, restraint, investigation, referral of
charges, trial in which arraignment occurred, or other action begun
prior to December 9, 1994, and any such restraint, investigation,
referral of charges, trial, or other action may proceed in the same
manner and with the same effect as if these amendments had not been
prescribed.
Sec. 5. The Secretary of Defense, on behalf of the President, shall
transmit a copy of this order to the Congress of the United States in
accord with section 836 of title 10, United States Code.
William J. Clinton
The White House,
November 10, 1994.
[Filed with the Office of the Federal Register, 12:16 p.m., November 14,
1994]
Note: This Executive order and the attached annexes will be published in
the Federal Register on November 15.