By the authority vested in me as President by the Constitution of the United States and by Chapter 47 of Title 10 of the United States Code (the Uniform Code of Military Justice), in order to prescribe amendments to the Manual for Courts-Martial, United States, 1969 (Revised edition), prescribed by Executive Order No. 11476, as amended by Executive Order No. 11835, Executive Order No. 12018, Executive Order No. 12198, Executive Order No. 12233, and Executive Order No. 12306, it is hereby ordered as follows:
Section 1. The fifth paragraph of paragraph 70a of the Manual for Courts-Martial, United States, 1969 (Revised edition), is amended by inserting the following after the first sentence: "If the plea is accepted, such evidence shall be introduced during the presentencing proceedings under paragraph 75, except when the evidence is otherwise admissible on the merits.".
Sec. 2. Paragraph 75 of the said Manual for Courts-Martial is amended to read as follows:
"75. Presentencing Procedure. a. General. (1) Procedure. After findings of guilty have been announced, the prosecution and defense may present appropriate matter to aid the court in determining an appropriate sentence. Such matter shall be presented pursuant to this paragraph and, when presented, shall ordinarily follow the following sequence:
"(a) Presentation by the trial counsel of service data relating to the accused taken from the charge sheet.
"(b) Presentation by the trial counsel of personal data relating to the accused and of the character of the accused's prior service as reflected in the personnel records of the accused.
"(c) Presentation by the trial counsel of evidence of prior convictions, military or civilian.
"(d) Presentation by the trial counsel of evidence of aggravation.
"(e) Presentation by the defense of evidence in extenuation or mitigation or both. "(f) Rebuttal.
"(g) Argument by the trial counsel on sentence.
"(h) Argument by the defense counsel on sentence.
"(i) Rebuttal arguments in the discretion of the military judge or the president of a special court-martial without a military judge.
"(2) Imposition of sentence. Sentencing will be imposed in all cases without unreasonable delay.
"(3) Sentencing matter and findings. Evidence that is presented to the court after findings of guilty have been announced may not be considered as evidence against the accused in determining the legal sufficiency of the findings of guilty upon review. If any matter inconsistent with the plea of guilty is received or if it appears from any matter received that a plea of guilty was entered improvidently, action should be taken as outlined in paragraph 70.
"b. Matter to be presented by the prosecution.
"(1) Service data from the charge sheet. The trial counsel shall inform the court of the data on the charge sheet relating to the age, pay, and service of the accused and the duration and nature of any restraint imposed upon the accused before trial. Subject to the discretion of the military judge or president of a special court-martial without a military judge, this may be accomplished by reading the material from the charge sheet or by supplying the court with an appropriate statement of such matter. If the defense objects to the data as being materially inaccurate or incomplete or as containing specified objectional matter, the military judge or president of a special court-martial without a military judge shall determine the issue. Objections not asserted are waived.
"(2) Personal data and character of prior service of the accused. Under regulations of the Secretary concerned, the trial counsel may obtain and introduce from the personnel records of the accused evidence of the marital status of the accused and the number of dependents, if any, of the accused, and evidence of the character of prior service of the accused. Such evidence includes copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions to include punishments under Article 15. See paragraph 75b (3) for evidence of prior convictions of the accused. Personnel records of the accused include all those records made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, performance, and history of the accused. If the accused objects to the information as being inaccurate or incomplete in a specific respect, or as containing matter that is not admissible under the Military Rules of Evidence as applied to the issue of sentencing, the matter shall be determined by the military judge or president of a special court-martial without a military judge. Objections not asserted are waived.
"(3) Evidence of prior convictions of the accused. (a) Generally. The trial counsel may introduce evidence of prior military or civilian convictions of the accused. Although such convictions need not be similar to the offense of which the accused has been found guilty, they must be for offenses committed during the six years next preceding the commission of any offense of which the accused has been found guilty. In computing the six-year period, periods of unauthorized absence demonstrated by the findings in the case or by evidence of previous convictions should be excluded. A vacation of a suspended sentence is not itself a conviction and is not admissible as such, but may be admissible under paragraph 75b(2) as reflected of the character of the prior service of the accused.
"(b) Finality. Before a conviction is admissible under this paragraph, all direct review and appeals must be completed. (See Article 44(b) and paragraph 68d). The following do not constitute direct review or appeal under this paragraph and do not affect the admissibility of a court-martial conviction under this paragraph: a pending collateral attack on a conviction in a federal court; a pending extraordinary writ to a Court of Military Review or to the Court of Military Appeals; a request to the Judge Advocate General to vacate or modify the findings or sentence of a court-martial under Article 69 "on the ground of newly discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, or error prejudicial to the substantial rights of the accused"; or a pending petition to the Judge Advocate General under Article 73. Before a civilian conviction is admissible under this paragraph, it must be considered a final conviction under the laws of the jurisdiction in which it occurred; unless specifically provided otherwise by such laws, the conviction will be considered final upon completion of all direct appeals. For example, pending collateral attack or an extraordinary writ does not affect the admissibility of a civilian conviction under this paragraph unless the laws of the jurisdiction in which the conviction occurred specifically provide that the conviction is not final under such circumstances.
"(c) Method of proof. Previous convictions may be proven by any evidence admissible under the Military Rules of Evidence. Normally, previous convictions may be proven by use of the personnel records of the accused, by the record of the conviction, or by the order promulgating the result of trial.
"(4) Evidence in aggravation. If a finding of guilty of an offense is based on a plea of guilty and available evidence as to any aggravating circumstances relating to the offenses of which the accused has been found guilty was not introduced before findings, the prosecution may introduce such evidence after the findings are announced. A written or oral deposition taken in accordance with paragraph 117 is admissible for purposes of evidence in aggravation, subject to Article 49.
"(5) Access of the defense to information to be presented by the trial counsel. The defense has the right upon request to receive prior to arraignment copies of such written material as will be presented by the prosecution on sentencing, along with a list of prosecution witnesses, if any. In the event that requested material is not provided, the defense shall have the right when such material is introduced on sentencing to obtain a recess or continuance to inspect and reply to the material.
"c. Matter to be presented by the defense. (1) In general. The defense may present matters in rebuttal of any material presented by the prosecution and may present matters in extenuation and mitigation regardless of whether the defense offered evidence before findings.
"(a) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse.
"(b) Matter in mitigation. Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court, or to furnish grounds for a recommendation of clemency. It includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty (see paragraph 68g), particular acts of good conduct or bravery, and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a good service-member. The accused may thus, for example, introduce evidence of the character of former military service in the form of former discharges from military service.
"(2) Statement by the accused. (a) Generally. The accused may testify, make an unsworn statement, or both in extenuation, in mitigation, or to rebut matters presented by the prosecution, or for all three purposes whether or not the accused testified prior to findings. Such statement may be limited to any one or more of the specifications of which the accused has been found guilty. This provision does not permit the filing of an affidavit of the accused.
"(b) Testimony of the accused. The accused may give sworn oral testimony under this paragraph and shall be subject to cross-examination concerning it by the trial counsel or examination on it by the court, or both.
"(c) Unsworn statement. The accused may make an unsworn statement under this paragraph and may not be cross-examined by the trial counsel upon it or examined upon it by the court. The prosecution may, however, rebut any statements of facts therein. The unsworn statement may be oral or written and may be made by the accused, by counsel, or both. An unsworn statement ordinarily should not include what is properly argument, but inclusion of such matter by the accused when personally making an oral statement normally should not be grounds for stopping the statement.
"(3) Rules of evidence relaxed. The military judge or president of a special court-martial without a military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence. This may include receiving letters, affidavits, certificates of military and civil officers, and other writings of similar authenticity and reliability.
"d. Rebuttal and surrebuttal. The prosecution may present evidence to rebut evidence presented by the defense. The defense in surrebuttal may then rebut any rebuttal evidence offered by the prosecution. Rebuttal and surrebuttal may continue, subject to the discretion of the military judge or president of a special court-martial without a military judge (see for example, Military Rule of Evidence 403), as appropriate. The Military Rules of Evidence may be relaxed during rebuttal and surrebuttal to the same degree as in paragraph 75c(3).
"e. Production of witnesses. (1) In general. The requirement for the personal appearance testimony in the presentencing proceeding differs substantially from that when the testimony of a witness is offered on the merits. During the presentence proceedings, there is much greater latitude to receive information by means other than testimony presented through the personal appearance of witnesses. See paragraph 115 for determination of availability of witnesses prior to trial. The determination at trial as to whether a witness shall be produced to testify during presentence proceedings is a matter within the sound discretion of the military judge or the president of a special court-martial without a military judge, subject to the limitations in paragraph 75e(2).
"(2) Limitations. A witness may be produced to testify during presentence proceedings through a subpoena or travel orders at Government expense only if—
"(a) The testimony expected to be offered by the witness is necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence, including evidence necessary to resolve an alleged inaccuracy or dispute as to a material fact;
"(b) The weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence;
"(c) The other party is unwilling to stipulate to the facts to which the witness is expected to testify, except in an extraordinary case when such a stipulation would be an insufficient substitute for the testimony;
"(d) Other forms of evidence, such as oral depositions, written interrogatories, or former testimony would not be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence; and
"(e) The significance of the personal appearance of the witness to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production of the witness. Factors to be considered in relation to the balancing test provided in paragraph 75e(2)(e) include, but are not limited to, the costs of producing the witness, the timing of the request for production of the witness, the potential delay in the presentencing proceeding that may be caused by the production of the witness, or the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training.
"f. Argument. After introduction of matters relating to sentence under this paragraph, counsel for the prosecution and defense may make arguments for an appropriate sentence. Trial counsel may not in argument purport to speak for the convening authority or any higher authority, refer to the views of such authorities or any policy directive relative to punishment, or to any punishment or quantum of punishment in excess of that which can be lawfully imposed in the particular case by that particular court. Trial counsel may, however, recommend a specific lawful sentence and may also refer to any generally accepted sentencing philosophy, to include rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution.".
Sec. 3. The fourth paragraph of paragraph 115 of the said Manual for Courts-Martial is amended as follows:
a. Insert the following after the second sentence: "With respect to a witness for the prosecution on the issue of sentencing, he will not take such action unless further satisfied that it will not cause a subpoena or travel orders at Government expense to be issued, except as authorized in paragraph 75e.".
b. Strike out the fourth sentence and insert the following in place thereof: "A request for the personal appearance of a witness will be submitted in writing, together with a statement signed by counsel requesting the witness. A request for a witness on the merits shall contain (1) a synopsis of the testimony that it is expected the witness will give, (2) full reasons that necessitate the personal appearance of the witness, and (3) any other matter showing that the expected testimony is necessary to the ends of justice. A request for a witness in a presentencing proceeding shall contain (1) a synopsis of the testimony that it is expected the witness will give and (2) the reasons why the personal appearance of the witness is necessary under the standards set forth in paragraph 75e.".
c. Strike out the words "the request" in the fifth sentence and insert the following in place thereof: "a request for a witness on the merits".
d. Insert the following after the fifth sentence: "The decision on a request for a witness in a presentencing proceeding shall be made under the standards set forth in paragraph 75e.".
Sec. 4. The second sentence of paragraph 117b(2) of the said Manual for Courts-Martial is amended as follows:
a. Insert "(a)" after "unless"; and
b. Strike out the period at the end of the sentence and insert the following: "; (b) the accused consents to appointment of assistant counsel at the site of the deposition; or (c) the deposition is ordered in lieu of production of a witness on the issue of sentencing under paragraph 75e and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by (1) an oral deposition without the presence of the accused or (2) a written deposition without the presence of the accused or counsel at the site of the deposition.".
Sec. 5. Rule 1101(c) of Chapter 27 of the said Manual for Courts-Martial is amended by striking out "75c" and inserting "75b(4), 75c(3), 75d," in place thereof.
Sec. 6. These amendments shall take effect on August 1, 1981. These amendments apply to all court-martial processes taken on or after that date: Provided, that nothing contained in these amendments shall be construed to invalidate any investigation, trial in which arraignment has been completed, or other action begun prior to that date; and any such investigation, trial, or other action may be completed in accordance with applicable laws, Executive Orders, and regulations in the same manner and with the same effect as if these amendments had not been prescribed.
Sec. 7. 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 of the United States Code.
The White House,
July 29, 1981.
[Filed with the Office of the Federal Register, 4:13 p.m., July 29, 1981]