Section 400.100  Introduction

 

a)         This Part, the Illinois Manual for Courts-Martial, referenced in this Part as the Manual, shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.  The purpose of military law is to promote justice, to maintain good order and discipline, to promote efficiency and effectiveness in the military, and to strengthen the security of the United States and the State of Illinois.  This Manual prescribes the policies and procedures pertaining to the administration of military justice and implements the Illinois Code of Military Justice [20 ILCS 1807] (the Code), applicable portions of the federal Uniform Code of Military Justice (UCMJ), and the Manual for Courts-Martial, United States (2012) (MCM).

 

b)         To the extent allowed by Illinois law and as prescribed by the Code, this Manual reflects the MCM.  Hence, this Manual must be construed so as to make it uniform, so far as practical, with the MCM. This Manual will be interpreted to include procedures and forms (e.g., DD Form 458, Charge Sheet) contained in the MCM and not contained in this Manual that may be needed from time-to-time in the administration of justice. 

 

c)         Insofar as any reference to the United States, President, or other federal official exists in the MCM, that reference encompasses the State, the Governor or State official, as appropriate.

 

d)         Code Section 36 vests the Adjutant General of Illinois with the authority to make or adopt rules and regulations (this Manual) in conformity with the Code that, as nearly as practicable, must conform with the rules and regulations governing the U.S. armed forces.  If this Manual differs from the rules and regulations governing the U.S. armed forces, this Manual shall apply.

 

e)         There is no substitute for strong and effective military leadership.  Commanders, officers, and non-commissioned officers should not attempt to replace leadership with military justice and punitive measures, except as a last resort and as punishment for offenses that have been committed.  Proper leadership, guidance and counseling can be effective in preserving good order and discipline within the State military forces (SMF) and should reduce the need for use of the military justice system.

 

Section 400.105  Definitions and Referenced Materials

 

a)         Definitions.  Except as modified in this Manual, the definitions and rules of construction in RCM 103, as incorporated by reference in subsection (b), apply to courts-martial under the Code and this Manual.

 

"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. (Code Section 1(a)(1))

 

"AGR" means Active Guard Reserve.

 

"ANG" means the Illinois Air National Guard.

 

"Appropriate Nonpunitive Administrative Measures" means such actions as reprimands, administrative reduction in rank, administrative separation from SMF, etc.).

 

"ARNG" means the Illinois Army National Guard.

 

"Cadet" or "Candidate" means a person who is enrolled in or attending a State military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the State military forces. (Code Section 1(a)(2))

 

"Classified Information" means:

 

any information or material that has been determined by an official of the United States or any state pursuant to law, an Executive Order, or regulation to require protection against unauthorized disclosure for reasons of national or State security; and

 

any restricted data, as defined in section 2014(y) of the Atomic Energy Act of 1954 (42 USC 2014(y)). (Code Section 1(a)(3))

 

"Code" means the Illinois Code of Military Justice [20 ILCS 1807].

 

"Commander" or "Commanding Officer", for purposes of this Part, means a commissioned or warrant officer who, by virtue of his or her or grade and assignment, exercises primary command authority over a military unit or organization recognized as a command. This term includes active duty and SMF commanders, whether in a Title 10 (U.S. Military) or Title 32 (National Guard) status, of installations or schools when a member's SMF commander is not also at the installation or school. This term shall include officers in charge only when they are administering nonjudicial punishment under Subpart K. (Code Section 1(a)(5))

 

"Convening Authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority. (Code Section 1(a)(6))

 

"Day" means a calendar day beginning at 0000 hours (12:00 a.m.) and ending at 2359 hours, 59 seconds (11:59, 59 seconds p.m.).  Any punishment authorized by this Manual that is measured in terms of days shall, when served in a status other than annual field training, be construed to mean succeeding duty days. (Code Section 1(a)(7))

 

"Declination to Prosecute" or "Declination to Further Prosecute" is a written statement that, in the opinion of the appropriate civil authority:

 

there is insufficient evidence to prove guilt beyond a reasonable doubt; or

 

the offense does not otherwise merit prosecution or further prosecution and states the basis for that opinion.

 

"Department" or "DMA" means the Illinois Department of Military Affairs.

"Derivative Evidence" means facts, information or physical objects that tend to prove an issue in a court-martial, but that are excluded from consideration by the trier of fact because they were learned directly from information illegally obtained.

 

"Duty Status Other Than State Active Duty" or "OTAD" means any other type of military duty or training pursuant to a written order issued under 32 USC, or traditional Inactive Duty Training periods pursuant to 32 USC 502(a). (Code Section 1(a)(8)) It does not include "active duty" under 10 USC, i.e., "full-time duty in the active military service of the United States".

 

"Enlisted Member" means a person in an enlisted grade.

 

"ETS" means expiration of term of service.

 

"Government" means the U.S. Government or the State of Illinois or, in a trial setting, the trial counsel or the prosecution, as the context indicates.

 

"IDT" means inactive duty training.

 

"Judge Advocate" means a commissioned officer of the organized State military forces who is a member in good standing of the bar of the highest court of a state, and is:

 

certified or designated as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy or Marine Corps, or designated as a law specialist as an officer of the Coast Guard, or a reserve or National Guard component of one of these; or

 

certified as a non-federally recognized judge advocate by the senior judge advocate of the commander of the force in the SMF of which the accused is a member, as competent to perform such military justice duties required by the Code.  If there is no such judge advocate available, then certification may be made by such senior judge advocate of the commander of another force in the SMF, as the convening authority directs. (Code Section 1(a)(10))

 

"MCM" means the Manual for Courts-Martial, United States referenced in subsection (b).

 

"Manual" means this Part, the Illinois Manual for Courts-Martial and Nonjudicial Punishment.

 

"Member" means a member of the State Military Force.

 

"Members of His or Her Command" refers to the assigned members of the unit or organization commanded, and to other members who are on temporary duty with, or otherwise attached to, the unit or organization.  Attachment orders are not necessary if the commander exercises the usual responsibilities and attributes of command over the member.

 

"Military Court" means a court-martial or a court of inquiry. (Code Section 1(a)(12))

 

"Military Judge" means an official of a general or special court-martial detailed in accordance with Code Section 26. (Code Section 1(a)(13))

 

"Military Offenses" means those offenses proscribed under Code Section 1(a)(14), the Code and Subpart J of this Manual.

 

"National Guard Bureau" or "NGB" means the channel of communications on all matters pertaining the National Guard, the Army National Guard of the United States, and the Air National Guard of the United States between Department of the Army, the Department of the Air Force, and the several states. (10 USC 10501(b))

 

"National Security" means the national defense and foreign relations of the United States. (Code Section 1(a)(15))

 

"NGIL-JA" means the Illinois National Guard Office of the Staff Judge Advocate.

 

"Nonjudicial Punishment" or "NJP" means action under Code Section 15 and Subpart K of this Manual.

 

"Officer" means a commissioned or warrant officer. (Code Section 1(a)(16))

 

"Officer in Charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as the officer in charge by the appropriate authority. (Code Section 1(a)(17))

 

"Principal Assistant" means a commissioned officer of the State military forces serving in a position immediately subordinate to the convening authority who would assume command in the event of the commander's death, prolonged absence, or disability, or to the vice-commander of the organization.  However, in the case of the Air National Guard, the principal assistant may include an officer who is not "air rated" (as defined in the applicable service regulation pertaining to commanders) and is serving in a position immediately subordinate to the convening authority.  Any delegation of authority to a "principal assistant" shall be in writing, unless exigencies prevent such written delegation.  Verbal authorization shall be reduced to writing as soon as possible.

 

"Record", when used in connection with the proceedings of a court-martial, means:

 

an official written transcript, written summary, or other writing relating to the proceedings; or

 

an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced. (Code Section 1(a)(18))

 

"Senior Force Judge Advocate" means the senior judge advocate of the commander of the same force of the SMF as the accused and who is that commander's chief legal advisor. (Code Section 1(a)(22))

 

"SMF" means the State military forces subject to the Illinois Code of Military Justice.

 

"State", when not capitalized, means one of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam or the U.S. Virgin Islands. (Code Section 1(a)(20)) When capitalized "State" means the State of Illinois.

 

"State Active Duty" means active duty in the SMF under an order of the Governor or the Adjutant General, or otherwise issued by authority of State law and paid by State funds.

 

"State Military Forces" or "SMF" means the Illinois National Guard and any other military force organized under the Constitution and laws of Illinois.  This includes the Illinois State Guard when:

 

organized by the Governor as Commander-in-Chief under the Military Code of Illinois and the Illinois State Guard Act;

 

not in a status subjecting those forces to the exclusive jurisdiction of the UCMJ; and

 

traveling to and from duty. (Code Section 1(a)(23))

 

"Superior Commissioned Officer" means a commissioned officer superior in rank or command. (Code Section 1(a)(24))

 

"Uniform Code of Military Justice" or "UCMJ" means 10 USC 801 et seq.

 

b)         Referenced Materials

 

1)         The Constitution of the State of Illinois; Article XII (Militia)

 

2)         Illinois Statutes:

 

Appellate Court Act [705 ILCS 25]

 

Code of Civil Procedure of 1963 [735 ILCS 5]

 

Code of Criminal Procedure [725 ILCS 5]

 

Criminal Code of 2012 [720 ILCS 5]

 

Firearm Owners Identification Card Act (FOID Act) [430 ILCS 65]

 

Freedom of Information Act [5 ILCS 140] (FOIA)

 

Illinois Code of Military Justice [20 ILCS 1807] (the Code)

 

Military Code of Illinois [20 ILCS 1805]

 

State Finance Act [30 ILCS 105]

 

State Guard Act [20 ILCS 1815]

 

3)         Illinois Materials:

 

Illinois Rules of Evidence (http://www.illinoiscourts.gov/

SupremeCourt/Evidence/Evidence.asp)

 

4)         Federal Statutes:

 

Armed Forces (10 USC)

 

Atomic Energy Act of 1954 (42 USC 2014)

 

Controlled Substances Act (21 USC 812).

 

Criminal laws of the United States (18 USC and other non-military federal criminal laws)

 

National Guard (32 USC)

 

Uniform Code of Military Justice (10 USC 801 et seq.) (UCMJ)

 

3)         Incorporations by Reference

 

A)        The following materials are incorporated by reference:

 

Federal Rules of Evidence, United States Supreme Court (2017), www.rulesofevidence.org.

 

Manual for Courts-Martial, United States (2012 Edition) (MCM) (jsc.defense.gov/Portals/99/Documents/MCM2012.pdf)

 

Part II:  Rules for Courts-Martial (2012 Edition) (RCM)

 

Part III:  Military Rules of Evidence (2012 Edition)

 

Appendix 3:  Department of Defense Directive 5525.7 (Implementation of the Memorandum of Understanding Between the Department of Justice and the Department of Defense Relating to the Investigation and Prosecution of Certain Crimes)

 

B)        This subsection (b)(3) incorporates no later amendments or editions.

 

Section 400.110  Persons Subject to the Code; Jurisdiction

 

a)         General Statement.  No person may be punished under the Code for any offense provided for in the Code, unless there is jurisdiction over the person and jurisdiction over the offense.

 

b)         Jurisdiction Over the Person.  There is jurisdiction over the person if, at both the time the offense was committed and the time of trial, that person:

 

1)         is a member of the SMF; and

 

2)         is, for a day or a portion of a day, in State Active Duty status or OTAD, and at no other times.  (Code Section 2(a))

 

c)         Jurisdiction Over the Offense.  Subject matter jurisdiction is established if the person:

 

1)         commits a military offense as defined in Code Section 1(a)(14); or

 

2)         commits an offense not in Code Section 1(a)(14) (non-military offense) that is in violation of either the Code or the criminal law of the state in which it was committed, or that of the United States; and

 

A)        the appropriate civil authority has provided the NGIL-JA a declination to prosecute; or

 

B)        a civil court of competent jurisdiction has dismissed the charge, and the appropriate civil authority has provided the NGIL-JA a declination to further prosecute, provided jeopardy has not attached.

 

d)         Persons Assigned and Attached to Other Commands.  For jurisdiction issues based on assignment or attachment, each service component shall refer to the current service component guidance, including regulations and policy directives.  Prior to the initiation of any military justice action, the judge advocate will ensure that the commander will resolve any military justice authority issue regarding assigned or attached personnel.

 

Section 400.115  Jurisdiction to Try Certain Personnel

 

a)         Jurisdiction Over the Person

 

1)         The following persons are subject to jurisdiction under the Code:

 

A)        a member of the SMF when in State active duty or OTAD, but at no other times;

 

B)        a person in custody of the SMF before trial or serving a sentence imposed by a court-martial;

 

C)        a person who has voluntarily enlisted in the SMF and who has the capacity to understand the significance of enlisting in the SMF.  The enlistment shall be valid for purposes of jurisdiction and a change of status from civilian to member of the SMF.  This form of jurisdiction shall be effective upon the taking of the oath of enlistment; and

 

D)        notwithstanding any other provision of law, a person serving in the SMF who:

 

i)          submitted voluntarily to military authority;

 

ii)         met the mental competence and minimum age qualifications of 10 USC 504 and 505 at the time of voluntary submission to military authority;

 

iii)        received military pay or allowances; and

 

iv)        performed military duties.

 

2)         A person remains subject to this Manual until the person's active status has been terminated in accordance with the law of the armed forces (10 USC) and the Military Code of Illinois [20 ILCS 1805] or the State Guard Act [20 ILCS 1815] and any of the applicable regulations of the National Guard Bureau or of that person's active component service, unless termination of status has been effectuated through the person's fraudulent activity.  If a person is charged and found guilty at court-martial of fraudulently obtaining discharge, Code Section 3 applies and the person may thereafter be charged for all offenses that were committed under the Code prior to the discharge, subject to the statute of limitations provided for in Code Section 43.

 

3)         The Adjutant General may, without the member's consent, order a member of the SMF to State Active Duty for the purposes of implementing any proceedings initiated under the Code.

 

4)         No person who has deserted from the SMF may be relieved from amenability to the jurisdiction of the Code by virtue of a separation from any later period of service. (Code Section 3(b))

 

b)         Subject Matter Jurisdiction

 

1)         Military Offenses.  Offenses of a military nature contained in Code Section 1(a)(14) may be the subject of administrative measures, nonjudicial punishment, or courts-martial jurisdiction, except as provided in subsection (b)(2).  Offenses of a military nature are derived from the UCMJ and, to the extent not inconsistent with the Code, this Manual reflects each element of the offense as described in the UCMJ, with the following clarifications:

 

A)        Insofar as an element refers to the United States, the element also will refer to the State of Illinois.

 

B)        Insofar as an element refers to individuals in the service of the United States or federal officials, the element also will include individuals in the service of the SMF or State officials as provided Code Sections 1(a)(14) and 88.

 

C)        Insofar as an element refers to the property of the United States, the element also will include property of the State of Illinois.

 

2)         Non-military Offenses

 

A)        A non-military offense is an offense that violates the Code and the criminal law of the United States, a state or a local jurisdiction. (Code Section 2(b)) Non-military offenses may be disposed of by nonjudicial punishment or courts-martial, provided jurisdiction exists under the Code and this Manual. Non-military offenses may be subject to prosecution under U.S., state or local jurisdiction (see Code Sections 133, 134 and/or 149).

 

B)        A proper civilian court has primary jurisdiction when an act or omission violates both the Code and the criminal law of the United States or of the state where the offense occurred.  In such cases, a State court-martial or NJP proceeding may be initiated only after the civilian authority has declined to prosecute or has dismissed charges, provided jeopardy has not attached, as provided in Section 400.835. (Code Sections 2(b) and 44)  However, nothing in this Manual precludes a commander from taking administrative action even if the civilian authority exercises jurisdiction. Administrative remedies shall not be considered double jeopardy.

 

C)        An SMF member who is subject to jurisdiction under the Code may be ordered to duty involuntarily for any purposes under this Manual or the Code.

 

D)        Coordination with the Attorney General or other appropriate prosecutorial authorities is essential to ensure that judge advocates prosecute with the cooperation of the local State's Attorney.  A commander shall refer all suspected civilian offenses to a judge advocate who shall coordinate with the proper authorities when appropriate.

 

Section 400.120  Territorial Applicability of the Code

 

a)         Territorial jurisdiction exists so long as there is personal jurisdiction under Code Section 2.  This Manual applies wherever and whenever the Code applies.  Courts-martial, courts of inquiry, and nonjudicial punishment proceedings may be convened and conducted, and punishment may be imposed, while in the State and while those units are serving outside the State with the same jurisdiction and powers as if the proceedings were held within the State. (Code Section 5(b))

 

b)         Courts-martial may be conducted anywhere and in any facility as mission requirements and military exigencies dictate, in the judgment of the appropriate senior force judge advocate.

 

Section 400.125  Judge Advocates

 

a)         Judge advocates must adhere to the State bar licensing requirements pursuant to Code Sections 1(a)(10), 26, 27 and 38.

 

b)         The senior force judge advocate of each force of the SMF is responsible for the supervision of the administration of military justice in that force. (See Code Section 6.)

 

Section 400.130  Military Judges

 

a)         The Governor or the Adjutant General shall appoint at least one judge advocate officer from the active rolls of the Illinois National Guard who has been previously certified and qualified for duty as a military judge by the Judge Advocate General of the judge advocate officer's respective armed force under UCMJ Article 26(b) to serve as a military judge under the Code.

 

b)         The military judge shall hold the rank of Major or above. (Code Section 6(a)) The military judge not only rules on all legal issues, motions and items provided for in the Code and during courts-martial, but, in order to effectuate this intent and process, the military judge has the responsibilities provided in RCM 801.

 

Section 400.200  Apprehension

 

a)         Apprehension is the taking of a person into custody. (Code Section 7(a))

 

b)         Any person subject to the Code who is authorized by the Code to apprehend persons subject to the Code may do so only after consultation with the NGIL-JA and only after having probable cause that an offense has been committed and that the person apprehended committed it. (Code Section 7(b))

 

c)         Civilians Authorized to Apprehend Deserters.  Under Code Section 7, any civilian officer having authority to apprehend offenders under laws of the United States, or of a state, may do so when apprehension is of a deserter from SMF. Upon receipt of DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), civilians authorized to apprehend shall do so and detain that deserter until appropriate military authorities take custody.

 

d)         How an Apprehension May Be Made

 

1)         General.  An apprehension is made by clearly notifying the person to be apprehended that the person is in custody.  This notice should be given orally or in writing, but may be implied by the circumstances.

 

2)         Warrants.  Neither warrants nor any other authorization shall be required for an apprehension under this Manual, except as required by the U.S. Constitution as applied to members of the armed forces.

 

3)         Use of Force.  Any person authorized under this Manual to make apprehension may use such force and means as reasonably necessary under the circumstances to effect the apprehension.

 

Section 400.205  Imposition of Restraint

 

a)         Types of Pretrial Restraint.  Pretrial restraint is moral or physical restraint on a person's liberty that is imposed before and during disposition of offenses. Pretrial restraint may consist of conditions on liberty, restriction in lieu of arrest, arrest or confinement.

 

1)         Conditions on Liberty.  Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts.  These conditions may be imposed in conjunction with other forms of restraint or separately.

 

2)         Restriction in Lieu of Arrest.  Restriction in lieu of arrest is the restraint of a person by oral or written orders directing the person to remain within specified limits.  A restricted person shall, unless otherwise directed, perform full military duties while restricted.

 

3)         Arrest.  Arrest is the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits.  (Code Section 9(a)) A person in the status of arrest shall not be required to perform full military duties such as commanding or supervising personnel, serving as guard, or bearing arms.  The status of arrest automatically ends when the person is placed, by the authority who ordered the arrest or a superior authority, on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing, or to take part in routine training and duties.

 

4)         Confinement.  Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses.  No person may be ordered into pretrial confinement, except upon determination of probable cause that the person committed an offense under the Code and with the concurrence of the NGIL-JA.

 

A)        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 the Code.  A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer's command or subject to the commanding officer's authority into arrest or confinement. (Code Section 9(b))

 

B)        A commissioned officer, a warrant officer, or a civilian subject to the Code or to trial under the Code may be ordered into arrest or confinement only by a commanding officer to whose authority the person is subject, by an order, oral or written, delivered in person or by another commissioned officer.  The authority to order the persons into arrest or confinement may not be delegated. (Code Section 9(c))

 

b)         No person subject to the Code may be placed in any sort of pretrial restraint, except:

 

1)         for probable cause, as described in subsection (c), has been determined after coordination with a judge advocate officer; and

 

2)         when holding the person without restraint is impractical or not possible (Code Section 9(d)).

 

c)         Probable cause for pretrial restraint exists when there is a reasonable belief that:

 

1)         An offense triable by courts-martial has been committed;

 

2)         The person to be restrained committed it; and

 

3)         The restraint order is reasonably required by the circumstances.

 

d)         Each person ordered to pretrial restraint shall be promptly informed of:

 

1)         The nature of the offenses for which the person is held;

 

2)         The right to remain silent and that any statement made by the person may be used against the person; and

 

3)         The right to retain civilian counsel at no expense to the State of Illinois and the right to request free assignment of trial defense counsel through Illinois National Guard trial defense services.

 

e)         This Section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority is notified. (Code Section 9(d))

 

Section 400.210  Confinement of Persons Charged with Offenses

 

a)         Any person subject to the Code charged with an offense under the Code may be ordered into arrest or confinement, as circumstances require.  When any person subject to the Code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which the person is accused and diligent steps shall be taken to try the person or to dismiss the charges and release the person. (Code Section 10)

 

b)         Requirements for Confinement.  The commander shall direct the prisoner's release from pretrial confinement unless the commander believes, upon probable cause, that reasonable grounds exist that:

 

1)         An offense triable by a court-martial has been committed;

 

2)         The prisoner committed it;

 

3)         Confinement is necessary because it is foreseeable that:

 

A)        The prisoner will not appear at trial, pretrial hearing, or investigation; or

 

B)        The prisoner will engage in serious criminal misconduct; and

 

4)         Less severe forms of restraint are inadequate.

 

c)         A person should not be confined as a mere matter of convenience or expedience. Some of the factors that should be considered under this subsection (c) are:

 

1)         The nature and circumstances of the offenses charged or suspected, including extenuating circumstances;

 

2)         The weight of the evidence against the accused;

 

3)         The accused's ties to the locale, including family, off-duty employment, financial resources, and length of residence;

 

4)         The accused's character and mental condition;

 

5)         The accused's service record, including any record of previous misconduct;

 

6)         The accused's record of appearance at or flight from other pretrial investigations, trials and similar proceedings; and

 

7)         The likelihood that the accused can and will commit further serious criminal misconduct if allowed to remain at liberty.

 

d)         Although the Illinois Military Rules of Evidence (Subpart F) are not applicable at this stage, the commander should judge the reliability of the information available.  Before relying on the reports of others, the commander must have a reasonable belief that the information is believable and has a factual basis.  The information may be received orally or in writing.  Information need not be received under oath, but an oath may add to its reliability.  A commander may examine the prisoner's personnel records and police records and may consider the recommendations of others.

 

e)         Less serious forms of restraint must always be considered before pretrial confinement is approved.

 

f)         Review of Confinement.  No later than 48-hours after confinement is ordered, that confinement shall be reviewed by a military judge as a "neutral and detached officer" under RCM 305.

 

Section  400.215  Place of Confinement; Reports and Receiving of Prisoners

 

a)         If a person subject to the Code is confined before, during or after trial, confinement shall be in a county jail, an Illinois Department of Corrections (DOC) facility, or in a military confinement facility. (Code Section 11(a))

 

b)         No person, sheriff or DOC personnel authorized to receive prisoners under subsection (a) may refuse to receive or keep any prisoner committed to the person's charge by a commissioned SMF officer who furnishes a statement, signed by that officer, of the offense charged or conviction obtained against the prisoner, unless otherwise authorized by law. (Code Section 11(b))

 

c)         Every person authorized to receive prisoners pursuant to subsection (a) to whose charge a prisoner is committed shall, within 24 hours after that commitment, or as soon as the person is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment. (Code Section 11(c))

 

d)         Transportation from Confinement to Proceedings Under the Code.  When a person is subject to pretrial restraint under the Code and this Manual, the person's constitutional right to appear at proceedings must be protected.  Towards that end, a person confined under this Manual must be transported to and from courts of inquiry, arraignment, pretrial hearings, motions arguments, court-martial, sentencing, and any other legal proceeding at which the person has a right to attend, unless circumstances are such that the SMF is manifestly unable to provide for that attendance, or unless the person flees from proceedings.  Transportation shall occur in the following manner:

 

1)         The peace officers, correctional officers, agents, employees or service members tasked with transportation of prisoners at the county jail, a DOC facility, or military confinement facility at which the person is confined shall transport the person subject to the Code to and from any legal proceeding the person has a right to attend, unless circumstances are reasonably such that the peace officers, correctional officers, agents, employees or service members are manifestly unable to transport the person;

 

2)         If the peace officers, correctional officers, agents, employees or service members are manifestly unable to transport the confined person, military police shall transport the person to and from legal proceedings the person has a right to attend, unless circumstances are reasonably such that the military police officers are manifestly unable to transport the person; and 

 

3)         If the military police are manifestly unable to transport the person, the SMF may contract with a prisoner transportation service company to provide appropriate transportation services to and from any legal proceedings the person has a right to attend.

 

Section 400.220  Confinement with Enemy Prisoners Prohibited

 

No member of the SMF may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces. (Code Section 12)

 

Section 400.225  Punishment Prohibited Before Trial

 

No person, while being held for trial or awaiting a verdict, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon that person be any more rigorous than the circumstances required to insure the person's presence, but the person may be subjected to minor punishment during that period for infractions of discipline. (Code Section 13)

 

Section 400.230  Delivery of Offenders to Civil Authorities

 

a)         A person subject to the Code accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial or confinement. (Code Section 14(a))

 

b)         When delivery under this Section 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 the offense, shall, upon the request of competent military authority, be returned to the place of original custody for the completion of the person's sentence. (Code Section 14(b))

 

c)         The Adjutant General may authorize the delivery of a person pending court-martial proceedings under the Code to civil authorities for separate, unrelated offenses as alleged by the civil authority when presented with a warrant or similar court order for that person's arrest or delivery.  The civil authority responsible for obtaining the warrant or similar court order must provide or arrange delivery to the appropriate receiving agency and pay or arrange payment for any costs incurred during the course of that delivery.

 

d)         The Adjutant General shall authorize the delivery of a person pending court-martial proceedings under the Code to civil authorities for non-military offenses that have been charged by the civil authorities and that arise from the same allegations of misconduct that caused the person's pending court-martial proceedings under the Code.  In this instance, Code Section 2(b) shall apply.

 

e)         If a commanding officer receives a warrant or other court order demanding delivery of a person to civil authorities, that warrant or other court order must be forwarded to the Staff Judge Advocate and the Adjutant General immediately and within no more than 24 hours.

 

f)         If a commanding officer receives a warrant or other court order demanding delivery of a person to civil authorities at a time when the person is present on a duty status and not under arrest or confinement under the Code, the commanding officer will order the person detained and will immediately, and within no more than 24 hours, notify the Staff Judge Advocate and the Adjutant General for confirmation and authority to deliver the person to civil authorities.

 

g)         Nothing in this Manual limits the authority of federal or State law enforcement officials to apprehend persons, whether or not subject to trial by court-martial, to the extent permitted by applicable statutes and other laws.

 

Section 400.300  Preliminary Inquiry Into Reported Offenses

 

a)         Any person may report an offense subject to trial by court-martial.  Ordinarily, any military authority that receives a report of an offense shall forward as soon as practicable the report and any accompanying information to the immediate commander of the suspect.  Competent authority superior to that commander may direct otherwise.

 

b)         Upon receipt of information that an SFM member is accused or suspected of committing an offense triable by court-martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses.

 

c)         The preliminary inquiry may be informal, but should include an examination of the charges and an investigative report or other summary of evidence.  The inquiry should gather all reasonably available evidence bearing on guilt or innocence and any evidence relating to the aggravation, extenuation or mitigation of the conduct that the person is accused or suspect of committing.

 

d)         If a person is accused or suspected of misconduct of a serious or complex nature, the commander should seek the assistance of civilian law enforcement personnel or military police in conducting any inquiry or further investigation.

 

e)         The commanding officer should always consult with his or her judge advocate for appropriate legal guidance when notified of a potential offense, and use that legal guidance in directing the preliminary inquiry into the charges and offenses.

 

Section 400.305  Initial Disposition

 

a)         Who May Dispose of Offenses.  Subject to applicable military justice policies promulgated by proper authority, each commander has discretion to dispose of offenses by members of that command.  Ordinarily, the immediate commander of a person accused or suspected of committing an offense triable by court-martial initially determines how to dispose of that offense.

 

b)         A superior commander may withhold the authority to dispose of offenses in individual cases, types of cases, or generally.  A superior commander may not limit the discretion of           a subordinate commander to act on cases over which authority has not been withheld.

 

Section 400.400  Courts-Martial Classified

 

The 3 kinds of courts-martial in the SMF are:

 

a)         general courts-martial, consisting of:

 

1)         a military judge and not fewer than 5 members; or

 

2)         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;

 

b)         special courts-martial, consisting of:

 

1)         a military judge and not fewer than 3 members; or

 

2)         only a military judge, if one has been detailed to the court and the accused, under the same conditions prescribed in subsection (a)(2), so requests; and

 

c)         summary courts-martial consisting of one commissioned officer. (Code Section 16)

 

Section 400.405  Jurisdiction of Courts-Martial

 

a)         General.  Each component of the SMF has court-martial jurisdiction over all members of the particular component who are subject to the Code.  Additionally, the Army and Air National Guard SMF have court-martial jurisdiction over all members subject to the Code. (Code Section 17)

 

b)         General Courts-Martial. Subject to subsection (a), general courts-martial have jurisdiction to try persons subject to the Code for any offense made punishable by the Code, and may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by the Code. (Code Section 18)

 

c)         Special Courts-Martial.  Subject to subsection (a), special courts-martial have jurisdiction to try persons subject to the Code for any offense made punishable by the Code, and may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by the Code except dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding ⅔ pay per month, or forfeiture of pay for more than one year. (Code Section 19)

 

d)         Summary Courts-Martial

 

1)         Subject to subsection (a), summary courts-martial have jurisdiction to try persons subject to the Code, except officers, cadets and candidates, for any offense made punishable by the Code under such limitations as the Governor may prescribe. (Code Section 20(a))

 

2)         No person with respect to whom summary courts-martial have jurisdiction may be brought to trial before a summary court-martial if that person objects.  If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial may be ordered, as may be appropriate.  Summary courts-martial may, under such limitations as the Governor may prescribe, adjudge any punishment not forbidden by the Code except dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than 2 months, or forfeiture of more than ⅔ of one month's pay. (Code Section 20(b))

 

Section 400.410  Who May Convene a Court-Martial

 

a)         General Courts-Martial

 

1)         General courts-martial may be convened by:

 

A)        The Governor; or

 

B)        The Adjutant General. (Code Section 22)

 

2)         Any superior commander can withhold convening authority from a subordinate commander but shall not delegate his or her own authority.  When authority is withheld, that action should be in clearly defined writing or permanent directive.  The original letter withholding convening authority should be filed at Joint Force Headquarters, Office of the Staff Judge Advocate, 1301 N. MacArthur Blvd, Springfield IL 62702.  A copy should also be kept by the judge advocate serving the commander whose authority has been withheld.  Any such withholding remains in effect when a new commander is appointed to or assumes either command, until or unless expressly revoked by the superior commander.  Any such action should be addressed by duty title and not by name.

 

b)         Special Courts-Martial

 

1)         Special courts-martial may be convened by:

 

A)        any person who may convene a general court-martial;

 

B)        the Commander of the Illinois Army National Guard, for members of the Illinois Army National Guard, when empowered by the Adjutant General; or

 

C)        the Commander of the Illinois Air National Guard, for members of the Illinois Air National Guard, when empowered by the Adjutant General. (Code Section 23(a))

 

2)         If any officer listed in subsection (b)(1) is an accuser, the court shall be convened by superior competent authority and may, in any case, be convened by that superior authority if considered desirable by that authority. (Code Section 23(b))

 

c)         Summary Courts-Martial

 

1)         Summary courts-martial may be convened by:

 

A)        any person who may convene a general or special court-martial;

 

B)        the commanding officer or officer in charge of any other command when empowered by the Adjutant General. (Code Section 24(a))

 

2)         When only one commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases.  Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by that authority. (Code Section 24(b))

 

Section 400.415  Courts-Martial Composition

 

a)         Members of a Court-Martial

 

1)         Any SMF commissioned officer is eligible to serve on all courts-martial for the trial of any persons subject to the Code. (Code Section 25(a))

 

2)         Any SMF warrant officer is eligible to serve on general and special courts-martial for the trial of any person subject to the Code, other than a commissioned officer. (Code Section 25(b))

 

3)         Any enlisted member of the SMF 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 subject to the Code, but that member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under Code Section 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 unless the membership includes at least ⅓ enlisted members, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies.  If enlisted 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.  In this subsection (a), "unit" means any regularly organized body of the SMF not larger than a company, a squadron or a body corresponding to a company or squadron. (Code Section 25(c))

 

4)         When it can be avoided, no person subject to the Code may be tried by a court-martial any member of which is junior to the accused in rank or grade. (Code Section 25(d))

 

5)         When convening a court-martial, the convening authority shall detail as members of the court-martial such SMF members as, in the convening authority's opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.  No SMF member is eligible to serve as a member of a general or special court-martial when that member is the accuser or a witness, or has acted as investigating officer or as counsel in the same case. (Code Section 25(e))

 

6)         Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating.  The convening authority may delegate the authority under this subsection (a)(6) to a judge advocate or to any other principal assistant. (Code Section 25(f))

 

7)         Any delegation of authority to a judge advocate or principal assistant for purposes of excusal of members must be in writing, unless exigencies prevent written delegation.  Verbal authorization shall be reduced to writing as soon as possible.

 

8)         Duties.  The members of a court-martial shall determine whether the accused is proved guilty and, if necessary, adjudge a proper sentence, based on the evidence and in accordance with the instructions of the military judge.  Each member has an equal voice and vote in deliberating upon and deciding all matters, except as otherwise specifically provided in this Manual.  No member may use rank or position to influence another member. No member of a court-martial may have access to or use in any open or closed session this Manual, reports of decided cases, or any other reference material, except that the president of a special court-martial without a military judge may use these materials in open session.

 

9)         President

 

A)        Qualifications.  The president of a court-martial shall be the detailed member senior in rank then serving.

 

B)        Duties.  The president shall have the same duties as the other members and shall also:

 

i)          Preside over closed sessions of the members of the court-martial during their deliberations;

 

ii)         Speak for the members of the court-martial when announcing the decision of the members or requesting instructions from the military judge; and

 

iii)        In a special court-martial without a military judge, perform the duties assigned by this Manual to the military judge, except as otherwise expressly provided.

 

b)         Military Judges

 

1)         Qualifications to serve as a military judge are described in Code Sections 6 and 26.  In addition to the mandatory qualifications delineated in Code Sections 6 and 26, the following factors may be considered when certifying an officer as a military judge:

 

A)        Appropriate judicial decorum, civility and temperament;

 

B)        Civilian judicial experience;

 

C)        Military judicial experience;

 

D)        Military legal experience;

 

E)        Designation as judge advocate;

 

F)         Reputation;

 

G)        Familiarity with the Code and this Manual;

 

H)        Completion of the active component Military Judges Course;

 

I)         Knowledge of general criminal law and procedures;

 

J)         Education, training and experience;

 

K)        Familiarity with the customs, procedures and organization of the service branch of the accused; and

 

L)        Any other relevant factors.

 

2)         In addition to the requirements noted in Code Section 6(a), a military judge shall be:

 

A)        an active commissioned officer of an organized SMF;

 

B)        a member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for at least 5 years; and

 

C)        certified as qualified for duty as a military judge by the senior force judge advocate that is in the same force as the accused. (Code Section 26(b))

 

3)         When a military judge is not a member of the bar of the highest court of the state, he or she shall be deemed admitted pro hac vice, subject to filing a certificate with the senior force judge advocate in the same force as the accused, setting forth the qualifications listed in subsection (b)(1). (Code Section 26(c))

 

4)         The military judge of a general or special court-martial shall be designated by the senior force judge advocate in the same force as the accused, or a designee, for detail by the convening authority.  Neither the convening authority nor any staff member of the convening authority shall prepare or review any report concerning the effectiveness, fitness or efficiency of the military judge that relates to performance of duty as a military judge. (Code Section 26(d))

 

5)         No person is eligible to act as military judge in a case if that person is the accuser or a witness, or has acted as investigating officer or a counsel in the same case. (Code Section 26(e))

 

6)         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 vote with the members of the court. (Code Section 26(f))

 

c)         Absent and Additional Members

 

1)         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. (Code Section 29(a))

 

2)         Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below 5 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 5.  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. (Code Section 29(b))

 

3)         Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below 3 members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not fewer than 3 members.  The trial shall proceed with the new members present as if no evidence had been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court, or a stipulation to that record, is read to the court in the presence of the military judge, the accused and counsel for both sides. (Code Section 29(c))

 

4)         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 Code Section 16(1)(B) or (2)(B), 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 to that record is read in court in the presence of the new military judge, the accused, and counsel for both sides. (Code Section 29(d))

 

Section 400.420  Trial Counsel and Defense Counsel

 

a)         Detail of trial counsel and defense counsel shall be pursuant to Code Section 27. Except as provided in subsection (b), trial counsel or defense counsel detailed for a general or special court-martial must be:

 

1)         a judge advocate as defined in Code Section 1(a)(10); and

 

2)         in the case of trial counsel, a member in good standing of the bar of the highest court of the state where the court-martial is held. (Code Section 27(b))

 

b)         When a defense counsel is not a member of the bar of the highest court of the state, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth the qualifications that:

 

1)         the counsel is:

 

A)        a commissioned officer of the armed forces of the United States or a component thereof;

 

B)        a member in good standing of the bar of the highest court of a state; and

 

C)        certified as a judge advocate in the Judge Advocate General's Corps of the Army, Air Force, Navy or Marine Corps; or

 

2)         the counsel is a judge advocate as defined in Code Section 1(a)(10). (Code Section 27(c))

 

c)         Trial counsel or assistant trial counsel cannot be a person who was a convening authority, accuser or investigating officer.  However, the trial counsel and assistant trial counsel could have provided advice to the convening authority, the accuser or the investigator.

 

d)         The defense counsel shall not be in the chain of command of the court-martial members, president of the court-martial, or convening authority.

 

e)         A trial or defense counsel from one military component may be assigned to a court-martial in a different component and then detailed by the convening authority.

 

f)         Upon appointment of defense counsel, the convening authority will provide sufficient resources to ensure effective assistance of counsel.  Defense counsel may be placed in an appropriate duty or training status in order to provide defense services.

 

g)         Trial counsel will be placed in an appropriate duty or training status in order to provide prosecutorial services. 

 

h)         The accused has a right to retain civilian counsel to represent him or her at his or her own expense and at no cost to the State or the United States.  Civilian counsel must comply with the requirements of Code Section 27.

 

Section 400.425  Reporters and Court Interpreters

 

The convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters who shall record the proceedings of, and testimony taken before that court and may detail or employ interpreters who shall interpret for the court. (Code Section 28)

 

Section 400.500  Charges and Specifications

 

a)         Charges and specifications shall be signed by a person subject to the Code under oath before a commissioned officer authorized by Code Section 136(a) to administer oaths and shall state that:

 

1)         the signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications; and

 

2)         the charges and specifications are true in fact to the best of the signer's knowledge and belief. (Code Section 30(a))

 

b)         Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made in the interest of justice and discipline. The person accused shall be informed of the charges as soon as practicable. (Code Section 30(b))

 

c)         If a person subject to the Code commits a non-military offense, and that offense is an offense under both the law of the state where committed and under the law of another state, then the charges and specifications shall be drafted as violations of the law of the state where the offense was committed.

 

Section 400.505  Compulsory Self-Incrimination Prohibited

 

a)         No person subject to the Code may compel any person to incriminate himself or herself, or to answer any question the answer to which may tend to incriminate that person. (Code Section 31(a))

 

b)         No person subject to the Code may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial. (Code Section 31(b))

 

c)         No person subject to the Code may compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade that person. (Code Section 31(c))

 

d)         No statement obtained from any person in violation of this Section or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against that person in a trial by court-martial. (Code Section 31(d))

 

Section 400.510  Pretrial Investigation

 

a)         No charge or specification may be referred to a general or special court-martial for trial until a thorough and impartial investigation of all matters set forth in the charge or specification has been made.  This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation of the disposition that should be made of the case in the interest of justice and discipline. (Code Section 32(a))

 

b)         Who May Direct Investigation.  Unless prohibited by applicable law or regulation, an investigation may be directed under the Code by any court-martial convening authority (see Section 400.410).  That authority may also give procedural instructions not inconsistent with this Manual.

 

c)         Investigating Officer.  The commander directing an investigation under this Manual shall detail a judge advocate officer who is not the accuser to be the investigating officer. The investigating officer shall conduct the investigation and make a report of conclusions and recommendations.  The investigating officer is disqualified to act later in the same case in any other capacity.

 

d)         Scope of Investigation.  The investigating officer shall inquire into the truth and form of the charges, and such other matters as may be necessary to make a recommendation of the disposition of the charges.

 

e)         The accused shall be advised of the charges against him or her and of the right to be represented by counsel at the investigation (see Section 400.805).  At the investigation, full opportunity shall be given to the accused to cross-examine witnesses, if they are available, and to present anything the accused may desire on the accused's own behalf, either in defense or mitigation. The investigating officer shall examine available witnesses requested by the accused.  If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. A copy shall be given to the accused. (Code Section 32(b))

 

f)         If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination and presentation prescribed in subsection (e), no further investigation of that charge is necessary under this Section unless it is demanded by the accused after the accused is informed of the charge.  A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in the accused's own behalf. (Code Section 32(c))

 

g)         If evidence adduced in an investigation under this Section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense and make appropriate conclusions and recommendations as to disposition without the accused having first been charged with the offense, if the accused is:

 

1)         present at the investigation;

 

2)         informed of the nature of each uncharged offense investigated; and

 

3)         afforded the opportunities for representation, cross-examination and presentation prescribed in subsection (e). (Code Section 32(d))

 

h)         Witnesses.  In general, any witness whose testimony would be relevant and not cumulative shall be produced if reasonably available.  If not reasonably available, the investigating officer may consider alternatives to testimony (see RCM 405g(4), incorporated by reference in Section 400.105).

 

i)          Evidence. Subject to Section 400.700, evidence, including documents or physical evidence that is under the control of the government and that is relevant and not cumulative shall be produced if reasonably available.  This evidence includes evidence requested by the accused if the request is timely.  Evidence is reasonably available if its significance outweighs the difficulty, expense, delay and effect on military operations of obtaining the evidence.  If the evidence is not reasonably available, the investigating officer may consider alternatives to evidence as provided in RCM 405g(5), incorporated by reference in Section 400.105.

 

j)          Procedure for Presentation of Evidence, Objections, Access by Spectators, and Presence of the Accused.  The provisions of RCM 405(h), incorporated by reference in Section 400.105, shall apply.

 

k)         Illinois Military Rules of Evidence.  Subpart F, other than Sections 400.610, 400.615, 400.620, 400.625, 400.695 and 400.700, shall not apply in pretrial investigations under this Manual.

 

l)          Report of Investigation.  The provisions of RCM 405(j), incorporated by reference in Section 400.105, shall apply.

 

m)        Waiver.  The accused may waive an investigation under this Manual.  In addition, failure to make a timely objection under this Manual, including an objection to the report, shall constitute a waiver of the objection. Relief from the waiver may be granted by the investigating officer, the commander who directed the investigation, the convening authority, or the military judge, as appropriate, for good cause shown.

 

n)         The requirements of this Section are binding on all persons administering the Code, but failure to follow them does not constitute jurisdictional error. (Code Section 32(e))

 

Section 400.515  Forwarding and Disposition of Charges

 

a)         Only persons authorized to convene courts-martial or to administer nonjudicial punishment under Subpart K may dispose of charges.  A superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of cases, or generally.

 

b)         When a commander with authority to dispose of charges receives charges, that commander shall promptly determine what disposition will be made in the interest of justice and discipline, unless the authority to do so has been limited or withheld by superior competent authority. A commander may dispose of charges by dismissing any or all of them, forwarding any or all of them to another commander for disposition, or referring any or all of them to a court-martial the commander is empowered to convene.

 

c)         When a person is held for trial by general court-martial, the commanding officer shall, within 15 days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction.  If that is not practicable, the commanding officer shall report in writing to that person the reasons for delay. (Code Section 33)

 

d)         When charges are forwarded to a superior commander for disposition, the forwarding commander shall make a personal recommendation as to disposition. If the forwarding commander is disqualified from acting as convening authority in the case, the basis for the disqualification shall be noted.

 

e)         Disposition by Summary Court-Martial Convening Authority.  When in receipt of charges, a commander exercising summary court-martial jurisdiction may:

 

1)         Dismiss any charges;

 

2)         Forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition;

 

3)         Forward any charges to a superior commander for disposition;

 

4)         Refer charges to a summary court-martial for trial.

 

f)         Disposition by Special Court-Martial Convening Authority.  When in receipt of charges, a commander exercising special court-martial jurisdiction may:

 

1)         Dismiss any charges;

 

2)         Forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition;

 

3)         Forward any charges to a superior commander for disposition;

 

4)         Refer charges to a summary court-martial for trial; or

 

5)         Unless otherwise directed by competent authority, direct a pretrial investigation under Code Section 32 and, if appropriate, refer any charges to a special court-martial for trial or forward the report of investigation with the charges to a superior commander for disposition.

 

Section 400.520  Advice of Judge Advocate and Referral for Trial

 

a)         The convening authority shall refer the charges to the senior force judge advocate or designee for consideration and advice pursuant to Code Section 34.  The judge advocate shall be provided with a complete copy of all documents, records or other evidence in the possession of the State and review all charges, together with the investigation and allied papers referenced in Code Section 33, as part of his or her legal review.

 

b)         Before any charge or specification may be referred for trial by general or special court-martial, the convening authority shall refer it to a judge advocate for consideration and advice.

 

1)         The convening authority may not refer a specification under a charge to a general or special court-martial for trial unless the convening authority has been advised in writing by a judge advocate that:

 

A)        the specification alleges an offense under the Code;

 

B)        the specification is warranted by the evidence indicated in the report of investigation under Code Section 32, if there is such a report; and

 

C)        a court-martial would have jurisdiction over the accused and the offense. (Code Section 34(a))

 

2)         The judge advocate shall also make to the convening authority a recommendation of the action to be taken by the convening authority. (Code Section 34(b)(2))

 

c)         The advice of the judge advocate under subsection (b) with respect to a specification under a charge shall include a written and signed statement by the judge advocate expressing conclusions with respect to each matter set forth in subsection (b)(1).  (Code Section 34(b)(1))

 

d)         A copy of the advice of the judge advocate shall be referred to the accused if charges are referred to a general or special court-martial.

 

e)         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. (Code Section 34(c))

 

Section 400.525  Action by Commander Exercising General Court-Martial Jurisdiction

 

a)         Disposition.  When in receipt of charges, a commander exercising general court-martial jurisdiction may:

 

1)         Dismiss any charges;

 

2)         Forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition;

 

3)         Forward any charges to a superior commander for disposition;

 

4)         Refer charges to a summary court-martial;

 

5)         Unless otherwise directed by competent authority, direct a pretrial investigation pursuant to Section 400.510, after which additional action under this Section may be taken; or

 

6)         Refer charges to a special or general court-martial.

 

b)         National Security Matters.  When in receipt of charges the trial of which the commander exercising general court-martial jurisdiction finds would probably be inimical to the prosecution of war or harmful to national security, that commander, unless otherwise directed by competent authority, shall determine whether trial is warranted. If trial is warranted, he or she shall determine whether the security considerations involved would override going to trial.  As the commander finds appropriate, the commander may dismiss the charges, authorize trial of them, or forward them to superior authority.

 

Section 400.530  Referral of Charges

 

a)         General. Referral is the order of a convening authority that charges against an accused will be tried by a specified court-martial.

 

b)         Any convening authority may refer charges to a court-martial convened by that convening authority or a predecessor unless the power to do so has been withheld by superior competent authority.

 

c)         An accuser may not refer charges to a general or special court-martial.

 

d)         Basis for Referral.  If the convening authority finds or is advised by a judge advocate that there are reasonable grounds to believe that an offense triable by a court-martial has been committed, the accused committed that offense, and the specification alleges an offense, the convening authority may refer it.  The finding may be based on hearsay in whole or in part.  The convening authority or judge advocate may consider information from any source and shall not be limited to the information reviewed by any previous authority, but a case may not be referred to a general court-martial except in compliance with subsection (e).  The convening authority or judge advocate shall not be required, before charges are referred, to resolve legal issues, including objections to evidence, that may arise at trial.

 

e)         General and Special Courts-Martial (see Code Section 34(a)).  The convening authority may not refer a specification under a charge to a general or special court-martial unless:

 

1)         There has been substantial compliance with the pretrial investigation requirements of Section 400.510; and

 

2)         The convening authority has received the advice of the staff judge advocate required under Section 400.520.  These requirements may be waived by the accused.

 

f)         How Charges Shall be Referred

 

1)         Order; Instructions. Referral shall be by the personal order of the convening authority.  The convening authority shall include proper instructions in the order prescribed by RCM 601(e) (Discussion).

 

2)         Joinder of Offenses.  In the discretion of the convening authority, two or more offenses charged against an accused may be referred to the same court-martial for trial, whether serious offenses or minor offenses (see Section 400.1200) or both, regardless of whether related.  Additional charges may be joined with other charges for a single trial at any time before arraignment if all necessary procedural requirements have been met concerning the additional charges.  After arraignment of the accused upon the charges, no additional charges may be referred to the same trial without consent of the accused.

 

3)         Joinder of Accused.  Allegations against 2 or more accused may be referred for joint trial if the accused are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The accused may be charged in one or more specifications, together or separately, and every accused need not be charged in each specification.  Related allegations against 2 or more accused that may be proved by substantially the same evidence may be referred to a common trial.

 

g)         Superior Convening Authorities.  Except as otherwise provided in this Section, a superior convening authority may cause charges, whether or not referred, to be transmitted to the convening authority for further consideration, including, if appropriate, referral.

 

Section 400.535  Service of Charges

 

The trial counsel shall serve or caused to be served upon the accused a copy of the charges referred to trial.  No person may, against the person's objection, be brought to trial before a general court-martial within a period of 60 days after the service of charges upon the accused, or in a special court-martial, within a period of 45 days after the service of charges upon the accused. (Code Section 35) In computing periods, the date of service of charges and the date of trial are excluded; holidays and Sundays are included.

 

Section 400.540  Changes to Charges and Specifications

 

a)         Minor Changes Defined.  Minor changes in charges and specifications are any except those that add a party, offenses or a substantial matter not fairly included in those previously preferred, or that are likely to mislead the accused as to the offenses charged.

 

b)         Minor Changes Before Arraignment.  Any person forwarding, acting upon, or prosecuting charges on behalf of the State, except an investigating officer appointed under Section 400.510 may make minor changes to charges or specifications before arraignment.

 

c)         Minor Changes After Arraignment.  After arraignment, the military judge may, upon motion, permit minor changes in the charges and specifications at any time before findings are announced if no substantial right of the accused is prejudiced.

 

d)         Major Changes.  Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew.

 

Section 400.545  Withdrawal of Charges

 

a)         Withdrawal.  The convening authority or superior competent authority may, for any reason, cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced.

 

b)         Referral of Withdrawn Charges.  Charges that have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason (see RCM 604(b) (Discussion)). Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity.

 

Section 400.600  General

 

a)         Introduction

 

1)         This Subpart F is applicable only to courts-martial.  It is not applicable to nonjudicial punishment, administrative boards, promotion boards, medical retention boards, retention boards, or investigations and/or actions pertaining to nonpunitive or administrative punishment.

 

2)         This Subpart is also maintained in a publication titled Illinois Military Rules of Evidence that is organized to coincide with the federal Military Rules of Evidence (MCM Part III). In this Subpart, the parenthetical cross-reference at the end of a body of text labeled Il. Mil. R. Evid. reflects the numbering system applied to these policies in that publication. 

 

b)         Scope of Rules

 

1)         This Subpart applies to general and special court-martial proceedings.

 

2)         In the absence of guidance in this Manual, courts-martial will apply Illinois State Rules of Evidence except as provided in subsection (b)(3).  The reviewing courts may look to general military case law in applying these rules of evidence, with particular emphasis on military offenses.

 

3)         Cases Arising in a State Other Than Illinois.  In any court-martial arising out of conduct in a state other than Illinois, evidence derived from an investigation conducted in that State is not inadmissible under this Subpart, provided that the evidence was lawfully obtained and would be admissible under the laws of that state. (Il. Mil. R. Evid. 101)

 

c)         Purpose.  This Subpart shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. (Il. Mil. R. Evid. 102)

 

d)         Rulings on the Evidence

 

1)         Effect of Erroneous Ruling.  Error may not be predicated upon a ruling that admits or excludes evidence unless the ruling materially prejudices a substantial right of a party and:

 

A)        Objection.  In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

 

B)        Offer of Proof.  In case the ruling is one excluding evidence, the substance of the evidence was made known to the military judge by offer or was apparent from the context within which questions were asked.  Once the military judge makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.  The standard provided in this subsection (d)(1)(B) does not apply to errors involving requirements imposed by the Constitution of the United States or the Constitution of the State of Illinois as applied to members of the armed forces unless the error arises under this Subpart and this subsection (d)(1)(B) provides a standard that is more advantageous to the accused than the constitutional standard.

 

2)         Record of Offer and Ruling.  The military judge may add any other or further statement that shows the character of the evidence, the form in which it was offered, the objection made, and the ruling.  The military judge may direct the making of an offer in question and answer form.

 

3)         Hearing of Members.  In a court-martial composed of a military judge and members, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the members by any means, such as making statements or offers of proof or asking questions in the hearing of the members.

 

4)         Plain Error.  Nothing in this subsection (d) precludes taking notice of plain errors that materially prejudice substantial rights that were not brought to the attention of the military judge. (Il. Mil. R. Evid. 104)

 

e)         Preliminary Questions

 

1)         Questions of Admissibility Generally.  Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, the admissibility of evidence, an application for a continuance, or the availability of a witness shall be determined by the military judge.  In making these determinations, the military judge is not bound by the rules of evidence, except those with respect to privileges.

 

2)         Relevancy Conditioned on Fact.  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the military judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.  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 when this Manual provides expressly to the contrary.

 

3)         Hearing of Members.  Except in cases tried before a special court-martial without a military judge, hearings on the admissibility of statements of an accused under Sections 400.610 through 400.630 shall, in all cases, be conducted out of the hearing of the members.  Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if the accused so requests.

 

4)         Testimony by Accused.  The accused does not, by testifying upon a preliminary matter, become subject to cross-examination with regard to other issues in the case.

 

5)         Weight and Credibility.  This subsection (e) does not limit the right of a party to introduce before the members evidence relevant to weight or credibility.  (Il. Mil. R. Evid. 104)

 

f)         Limited Admissibility

When evidence that is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly. (Il. Mil. R. Evid 105)

 

g)         Remainder of, or Related, Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement that, in fairness, should be considered contemporaneously with it. (Il. Mil. R. Evid. 106)

 

Section 400.605  Judicial Notice

 

a)         Judicial Notice of Adjudicative Facts

 

1)         Scope of Section.  This Section governs only judicial notice of adjudicative facts.

 

2)         Kinds of Facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

 

A)        generally known universally, locally, or in the area pertinent to the event; or

 

B)        capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

 

3)         When Discretionary.  The military judge may take judicial notice, whether requested or not.  The parties shall be informed in open court when, without being requested, the military judge takes judicial notice of an adjudicative fact essential to establishing an element of the case.

 

4)         When Mandatory.  The military judge shall take judicial notice if requested by a party and supplied with the necessary information.

 

5)         Opportunity To Be Heard.  A party is entitled, upon timely request, to an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed.  In the absence of prior notification, the request may be made after judicial notice has been taken.

 

6)         Time of Taking Notice.  Judicial notice may be taken at any stage of the proceeding.

 

7)         Instructing Members.  The military judge shall instruct the members that they may, but are not required to, accept as conclusive any matter judicially noticed. (Il. Mil. R. Evid. 201)

 

b)         Judicial Notice of Law

 

1)         Domestic Law.  The military judge may take judicial notice of State and federal law.  If the law is a fact that is of consequence to the determination of the action, the procedural requirements of subsections (a)(1) through (6) apply.

 

2)         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, including testimony, whether or not submitted by a party or admissible under this Subpart. This determination is a ruling on a question of law. (Il. Mil. R. Evid. 201A)

 

Section 400.610  Self-Incrimination

 

a)         Privilege Concerning Compulsory Self-Incrimination

 

1)         General.  The privileges against self-incrimination provided by the Fifth Amendment to the U.S. Constitution and Code Section 31 are applicable only to evidence of a testimonial or communicative nature.  The privilege most beneficial to the individuals asserting the privilege shall be applied.

 

2)         Standing

 

A)        In General.  The privilege of a witness to refuse to respond to a question the answer to which may tend to incriminate the witness is a personal one that the witness may exercise or waive at the discretion of the witness.

 

B)        Judicial Advice.  If a witness who is apparently uninformed of the privileges under this Section appears likely to incriminate himself or herself, the military judge should 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 request the military judge to so advise a witness provided that such a request is made out of the hearing of the witness and, except in a special court-martial without a military judge, the members.  Failure to so advise a witness does not make the testimony of the witness inadmissible.

 

3)         Exercise of the Privilege.  If a witness states that the answer to a question may tend to incriminate him or her, the witness may not be required to answer unless facts and circumstances are such that no answer the witness might make to the question could have the effect of tending 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 the witness 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.

 

A)        Immunity Generally.  The minimum grant of immunity adequate to overcome the privilege is that which, under the 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.

 

B)        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 shall be reduced to writing and shall 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 subsection (a)(3)(B), 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.

 

4)         Waiver by a Witness.  A witness who answers a question without having asserted the privilege against self-incrimination and thereby admits a self-incriminating fact may be required to disclose all information relevant to that fact except when there is a real danger of further self-incrimination.  This limited waiver of the privilege 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 Section 400.705(h)(2).

 

5)         Waiver by the Accused.  When an accused testifies voluntarily as a witness, the accused waives the privilege against self-incrimination with respect to the matters concerning which he or she so testifies.  If the accused is on trial for 2 or more offenses and on direct examination testifies concerning the issue of guilt or innocence as to 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 Section 400.705(h)(2).

 

6)         Effect of Claiming the Privilege

 

A)        Generally.  The fact that a witness has asserted the privilege against self-incrimination in refusing to answer a question cannot be considered as raising any inference unfavorable to either the accused or the government.

 

B)        On Cross-Examination.  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.

 

C)        Pretrial.  The fact that the accused, during official questioning and in exercise of rights under the Fifth Amendment to the U.S. Constitution or Code Section 31, remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated is inadmissible against the accused.

 

7)         Instructions.  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 shall 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. (Il. Mil. R. Evid. 301)

 

b)         Waiver of the Privilege Against Self-Incrimination

 

1)         General Rule. After receiving applicable warnings under Section 400.625, a person may waive the rights described in that Section and in subsection (a) of this Section and make a statement.  The waiver must be made freely, knowingly and intelligently.  A written waiver is not required.  The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel, and affirmatively consent to making a statement.

 

2)         Counsel

 

A)        If the right to counsel 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 requests counsel, any subsequent waiver of the right to counsel obtained during 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. (Il. Mil. R. Evid. 305A)

 

Section 400.615  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 Code Section 76a 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 Section 400.625 at the examination.

 

b)         Exceptions

 

1)         There is no privilege under this Section when the accused first introduces into evidence such statements or derivative evidence.

 

2)         An expert witness for the prosecution may testify as to the reasons for the expert's conclusions and the reasons therefor as to the mental state of the accused if expert testimony offered by the defense as to the mental condition of the accused has been received in evidence, but that testimony may not extend to statements of the accused except as provided in subsection (b)(1).

 

c)         Release of Evidence.  If the defense offers expert testimony concerning the mental condition of the accused, the military judge, upon motion, shall order the release to the prosecution of the full contents, other than any statements made by the accused, of any report prepared pursuant to Code Section 76a.  If the defense offers statements made by the accused at that examination, the military judge may, upon motion, order the disclosure of those 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 Code Section 76a from presenting any expert medical testimony on any issue that would have been the subject of the mental examination.

 

e)         Procedure.  The privilege in this Section may be claimed by the accused only under the procedure set forth in Section 400.620(a) through (g) for an objection or a motion to suppress. (Il. Mil. R. Evid. 302)

 

Section 400.620  Confessions; Admissions; Statements

 

a)         Definitions.  As used in this Section:

 

1)         "Confession" means an acknowledgment of guilt.

 

2)         "Admission" means a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.

 

3)         "Involuntary" means "involuntary" if it is obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the U.S. Constitution or Code Section 31, or through the use of coercion, unlawful influence or unlawful inducement.

 

b)         General Rule.  Except as provided in subsection (c), an involuntary statement or any derivative evidence from an involuntary statement may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this Section.

 

c)         Exceptions

 

1)         If the statement is involuntary only in terms of noncompliance with the requirements of Section 400.625(c) or (f), or the requirements concerning counsel under Section 400.610(b) and Section 400.625(d) and (e), this Section does not prohibit use of the statement to impeach by contradiction in the court testimony of the accused or the use of that statement in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.

 

2)         Evidence that was obtained as a result of an involuntary statement may be used when the evidence would have been obtained even if the involuntary statement had not been made.

 

3)         Derivative Evidence.  Evidence that is challenged under this subsection (c) as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence that the statement was made voluntarily, that the evidence was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made.

 

d)         Procedure

 

1)         Disclosure.  Prior to arraignment, the prosecution shall 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.

 

2)         Motions and Objections

 

A)        Motions to suppress or objections under this subsection (d)(2) or Section 400.615 or 400.625 to statements that have been disclosed shall 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.

 

B)        If the prosecution intends to offer against the accused a statement made by the accused that was not disclosed prior to arraignment, the prosecution shall 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 interests of justice.

 

C)        If evidence is disclosed as derivative evidence under this subsection (d) prior to arraignment, any motion to suppress or objection under this subsection (d) or Section 400.615 or 400.625 shall be made in accordance with the procedure for challenging a statement under subsection (d)(2)(A).  If that evidence has not been so disclosed prior to arraignment, the requirements of subsection (d)(2)(B) apply.

 

3)         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.

 

4)         Rulings.  A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at trial, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely.  When factual issues are involved in ruling upon the motion or objection, the military judge shall state essential findings of fact on the record.

 

5)         Effect of Guilty Plea.  Except as otherwise expressly provided in Code Section 45, 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 subsection (d) with respect to that offense, regardless of whether raised prior to plea.

 

e)         Burden of Proof.  When an appropriate motion or objection has been made by the defense under subsection (d)(2), the prosecution has the burden of establishing the admissibility of the evidence.  When a specific motion or objection has been required under subsection (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

 

1)         In General.  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 an objection is made, it shall be resolved by a majority vote of the members.  The court-martial shall be closed, and the members shall vote orally, beginning with the member junior in rank.

 

2)         Weight of the Evidence.  If a statement is admitted into evidence, the military judge shall permit the defense to present relevant evidence with respect to the voluntariness of the statement and shall instruct the members to give such weight to the statement as it deserves under all the circumstances.  When trial is by military judge without members, the military judge shall determine the appropriate weight to give the statement.

 

3)         Derivative Evidence.  Evidence that is challenged under this subsection (e) as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence that the statement was made voluntarily, that the evidence was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made.

 

f)         Defense Evidence.  The defense may present evidence relevant to the admissibility of evidence to which there has been an objection or motion to suppress under this Section.  An accused may testify for the limited purpose of denying that the accused made the statement or that the statement was made voluntarily.  Prior to the introduction of that testimony by the accused, the defense shall inform the military judge that the testimony is offered under this subsection (f).  When the accused testifies under this subsection (f), 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 making of a false official statement.

 

g)         Corroboration.  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 introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth.  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 some but not all of the essential facts admitted, the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence.  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.

 

1)         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 essential facts admitted.  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.

 

2)         Procedure.  The military judge alone shall determine when adequate evidence of corroboration has been received. Corroborating evidence usually is to be introduced before the admission or confession is introduced, but the military judge may admit evidence subject to later corroboration.

 

h)         Miscellaneous

 

1)         Degrading Questions.  No person may be compelled 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 that person.

 

2)         Oral Statements.  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 cannot be made available.

 

3)         Statements by One of Several Accused.  When 2 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. (Il. Mil. R. Evid. 306)

 

4)         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.

 

5)         Certain Admissions by Silence.  A person's failure to deny an accusation of wrongdoing concerning an offense for which, at the time of the alleged failure, the person was under official investigation or was in confinement, arrest or custody does not support an inference of an admission of the truth of the accusation.

 

6)         Refusal to Obey Order to Submit 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 that refusal may be admitted into evidence on:

 

A)        A charge of violating an order to submit that sample; or

 

B)        Any other charge on which the results of the chemical analysis would have been admissible. (Il. Mil. R. Evid. 304)

 

Section 400.625  Warnings About Rights

 

a)         General.  A statement obtained in violation of this Section is involuntary and shall be treated under Section 400.620.

 

b)         Definitions.  As used in this Section:

 

1)         "Person Subject to the Code" means a person acting as a knowing agent of a military unit or of a person subject to the Code.

 

2)         "Interrogation" means any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of that questioning.

 

c)         Warnings Concerning the Accusation, Right to Remain Silent, and Use of Statements. A person subject to the Code who is required to give warnings under Code Section 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first:

 

1)         informing the accused or suspect of the nature of the accusation;

 

2)         advising the accused or suspect that the accused or suspect has the right to remain silent; and

 

3)         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. (Code Section 31(b))

 

d)         Counsel Rights and Warnings

 

1)         General.  When evidence of a testimonial or communicative nature within the meaning of the Fifth Amendment to the U.S. Constitution either is sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an offense is entitled to consult with counsel as provided in subsection (d)(2), to have counsel present at the interrogation, and to be warned of these rights prior to the interrogation if:

 

A)        The interrogation is conducted by a person subject to the Code who is required to give warnings under Code Section 31 and 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; or

 

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 the charges.

 

2)         Counsel.  When a person entitled to counsel under this subsection (d) requests counsel, a judge advocate or an individual certified in accordance with Code Section 27(b) shall be provided by the State at no expense to the person and without regard to the person's indigency or lack of indigency before the interrogation may proceed.  In addition to counsel supplied by the State, the person may retain civilian counsel at no expense to the State. Unless otherwise provided by regulations of the Adjutant General, an accused or suspect does not have a right under this subsection (d) to have military counsel of his or her own selection.

 

e)         Presence of Counsel

 

1)         Custodial Interrogation.  Absent a valid waiver of counsel under Section 400.610(b), when an accused or person suspected of an offense is subjected to custodial interrogation under circumstances described in subsection (d)(1)(A), 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 Section 400.610(b), when an accused or person suspected of an offense is subjected to interrogation under circumstances described in subsection (d)(1)(B), 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.

 

f)         Exercise of Rights

 

1)         The Privilege Against Self-Incrimination.  If a person chooses to exercise the privilege against self-incrimination under this Section, questioning must cease immediately.

 

2)         The Right to Counsel.  If a person subjected to interrogation under the circumstances described in subsection (d)(1) chooses to exercise the right to counsel, questioning must cease until counsel is present. (Il. Mil. R. Evid. 305)

 

Section 400.630  Standards for Nonmilitary Interrogations

 

a)         General.  When a person subject to the Code is interrogated by an official or agent of the United States, State of Illinois or any state, the person's entitlement to warnings about rights and the validity of any waiver of applicable rights will be determined by the principles of law generally recognized in the State of Illinois.

 

b)         Warnings under Code Section 31 and the Fifth and Sixth Amendments to the U.S. Constitution are not required during an interrogation conducted outside of the U.S., including its possessions, by officials of a foreign government or their agents, unless the interrogation is conducted, instigated or participated in by SMF or U.S. military forces or their agents, or by officials or agents of U.S. federal, state or local jurisdictions.  A statement obtained from a foreign interrogation is admissible unless the statement is obtained through the use of coercion, unlawful influence, or unlawful inducement (see MCM Appendix 22).  An interrogation is not "participated in" by military personnel or their agents or by federal or state officials or agents merely because those officials or agents were 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. (Il. Mil. R. Evid. 305B)

 

Section 400.635  Evidence Obtained from Unlawful Searches and Seizures

 

a)         General.  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)         Objection.  The accused makes a timely motion to suppress or an objection to the evidence under this Section; and

 

2)         Adequate Interest.  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 U.S. Constitution as applied to members of the armed forces.

 

b)         Exceptions

 

1)         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)         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 the unlawful search or seizure had not been made.

 

3)         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 Section 400.650(b)(4) or from a search warrant or arrest warrant issued by a 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 shall be determined on an objective standard.

 

c)         Nature of Search or Seizure.  A search or seizure is "unlawful" if it was conducted, instigated or participated in by:

 

1)         Military Personnel.  Military personnel or their agents and was in violation of the U.S. Constitution as applied to members of the armed forces, an Act of Congress applicable to trials by court-martial that requires exclusion of evidence obtained in violation of that Act or Sections 400.640 through 400.655 of this Manual;

 

2)         Other Officials.  Other officials or agents of the U.S. federal government or its possessions, and state or local government and was in violation of the U.S. Constitution, or is unlawful under the principles of law generally applied in the trial of criminal cases in the U.S. district courts involving a similar search or seizure; or

 

3)         Officials of a Foreign Government.  Officials of a foreign government or their agents and 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"  merely because a person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.

 

d)         Motions to Suppress and Objections

 

1)         Disclosure.  Prior to arraignment, the prosecution shall disclose to the defense all evidence seized from the person or property of the accused, or believed to be owned by the accused, that it intends to offer into evidence against the accused at trial.

 

2)         Motion or Objection

 

A)        When evidence has been disclosed under subsection (d)(1), any motion to suppress or objection under this subsection (d) shall be made by the defense prior to submission of a plea.  In the absence of such a 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 seized from the person or property of the accused that was not disclosed prior to arraignment, the prosecution shall 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.

 

C)        If evidence is disclosed as derivative evidence under this subsection (d) prior to arraignment, any motion to suppress or objection under this subsection (d) shall be made in accordance with the procedure for challenging evidence under subsection (d)(2)(A).  If the evidence has not been so disclosed prior to arraignment, the requirements of subsection (d)(2)(B) apply.

 

3)         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 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 general objection.

 

4)         Rulings.  A motion to suppress or an objection to evidence made prior to plea shall 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 shall be deferred if a party's right to appeal the ruling is affected adversely.  When factual issues are involved in ruling upon the motion or objection, the military judge shall state essential findings of fact on the record.

 

e)         Burden of Proof

 

1)         General.  When an appropriate motion or objection has been made by the defense under subsection (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, or 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.

 

2)         Derivative Evidence.  Evidence that is challenged under this Section as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence ultimately would have been obtained by lawful means even if the unlawful search or seizure had not been made, or 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.  Notwithstanding other provisions of this subsection (e)(2), an apprehension made in a dwelling in a manner that violates Code Section 7 does not preclude the admission into evidence of a statement of an individual apprehended provided that:

 

A)        the apprehension was based on probable cause;

 

B)        the statement was made subsequent to the apprehension at a location outside the dwelling; and

 

C)        the statement was otherwise in compliance with this Section.

 

3)         Specific Motions or Objections.  When a specific motion or objection has been required under subsection (d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

 

f)         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 Section.  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 that testimony by the accused, the defense shall inform the military judge that the testimony is offered under this subsection (f).  When the accused testifies under this subsection (f), 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.

 

g)         Scope of Motion and Objections Challenging Probable Cause

 

1)         General.  If the defense challenges evidence seized pursuant to a search warrant or search authorization on the grounds 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 subsection (g)(2).

 

2)         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, shall be 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 shall be granted unless the search is otherwise lawful under this Section.

 

h)         Objections to Evidence Seized Unlawfully.  If a defense motion or objection under this Section is sustained in whole or in part, the members may not be informed of that fact except that the military judge must instruct the members to disregard evidence.

 

i)          Effect of Guilty Plea.  Except as otherwise expressly provided in Code Section 45, a plea of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the U.S. Constitution, this Section, and Sections 400.640, 400.645, 400.650(a) and (b), and 400.655 with respect to the offense, whether or not raised prior to plea. (Il. Mil. R. Evid. 311)

 

Section 400.640  Body Views and Intrusions

 

a)         General.  Evidence obtained from body views and intrusions conducted in accordance with this Section is admissible at trial when relevant and not otherwise inadmissible under this Section.

 

b)         Visual Examination of the Body

 

1)         Consensual.  Visual examination of the unclothed body may be made with the consent of the individual subject to the inspection in accordance with Section 400.650(a)(5).

 

2)         Involuntary  

 

A)        An involuntary display of the unclothed body, including a visual examination of body cavities, may be required only if conducted in reasonable fashion and authorized under one or more of:  

 

i)          Section 400.645, Section 400.650(a)(2) and (3) if there is a reasonable suspicion that weapons, contraband or evidence of crime is concealed on the body of the person to be searched;

 

ii)         Section 400.650(a)(8) if reasonably necessary to maintain the security of the jail or similar facility or its personnel;

 

iii)        Section 400.650(a)(7) and (9) and Section 400.650(b).  

 

B)        An examination of the unclothed body under this subsection (b) should be conducted whenever practicable by a person of the same sex as that of the person being examined; provided, however, that failure to comply with this requirement does not make an examination an unlawful search within the meaning of Section 400.635.

 

c)         Intrusion Into Body Cavities.  A reasonable nonconsensual physical intrusion into the mouth, nose and ears may be made when a visual examination of the body under subsection (b) is permissible.  Nonconsensual intrusions into other body cavities may be made:

 

1)         For Purposes of Seizure.  When there is a clear indication that weapons, contraband or other evidence of crime is present, to remove weapons, contraband or evidence of crime discovered under subsection (b) and (c)(2) or under Section 400.655(d)(4)(C) if the intrusion is made in a reasonable fashion by a person with appropriate medical qualifications; or

 

2)         For Purposes of Search.  To search for weapons, contraband or evidence of crime if authorized by a search warrant or search authorization under Section 400.650(b) and conducted by a person with appropriate medical qualifications.  Notwithstanding this subsection (c)(2), a search under Section 400.650(a)(8) may be made without a search warrant or authorization if such search is based on a reasonable suspicion that the individual is concealing weapons, contraband or evidence of crime.

 

d)         Extraction of Body Fluids.  Nonconsensual extraction of body fluids, including blood and urine, may be made from the body of an individual pursuant to a search warrant or a search authorization under Section 400.650(b) and conducted by a person with appropriate medical qualifications.  Nonconsensual extraction of body fluids may be made without a warrant or authorization, notwithstanding Section 400.650(b)(7) only when there is clear indication that evidence of crime will be found and that there is reason to believe that the delay that would result if a warrant or authorization were sought could result in the destruction of the evidence.  Involuntary extraction of body fluids under this subsection (d) must be done in a reasonable fashion by a person with appropriate medical qualifications.

 

e)         Other Intrusive Searches.  Nonconsensual intrusive searches of the body made to locate or obtain weapons, contraband or evidence of crime and not within the scope of subsection (b) or (c) may be made only with a warrant or search authorization under Section 400.650(b) and only if the search is conducted in a reasonable fashion by a person with appropriate medical qualifications and does not endanger the health of the person to be searched.  Compelling a person to ingest substances for the purposes of locating the weapon, contraband or evidence or to compel the bodily elimination of that property is a search within the meaning of this subsection (e).  However, a person who is neither a suspect nor an accused may not be compelled to submit to an intrusive search of the body for the sole purpose of obtaining evidence of crime.

 

f)         Intrusions for Valid Medical Purposes.  Nothing in this Section shall be deemed to interfere with the lawful authority of the SMF to take whatever action may be necessary to preserve the health of an SMF member.  Evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may be seized and is not evidence obtained from an unlawful search or seizure within the meaning of Section 400.650(a).

 

g)         Medical Qualifications.  The Adjutant General may prescribe appropriate medical qualifications for persons who conduct searches and seizures under this Section. (Il. Mil. R. Evid. 312)

 

Section 400.645  Inspections and Inventories in the Armed Forces

 

a)         For purposes of this Section:

 

1)         "Inspection" means 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 Section 400.640.  Inspections may utilize any reasonable natural or technological aid and may be conducted with or without notice to those inspected.

 

2)         "Inventory" means 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 Section 400.640.  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 Section.

 

b)         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 Section.

 

c)         Evidence obtained from lawful inspections and inventories in the SMF is admissible at trial when relevant and not otherwise inadmissible under this Section.  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 Section.

 

d)         An inspection may include, but is not limited to:

 

1)         an examination to determine and to ensure that the command is:

 

A)        properly equipped;

 

B)        functioning properly;

 

C)        maintaining proper standards of readiness, sea or airworthiness, sanitation and cleanliness; and

 

D)        personnel are present, fit and ready for duty;

 

2)         an order to produce body fluids, such as urine; and

 

3)         an examination to locate and confiscate unlawful weapons and other contraband, provided subsection (b) is not violated.  The prosecution must prove by clear and convincing evidence that the examination was an inspection within the meaning of this subsection (d)(3) if a purpose of an examination is to locate weapons or contraband and if:

 

A)        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;

 

B)        specific individuals are selected for examination; or

 

C)        persons examined are subjected to substantially different intrusions during the same examination. (Il. Mil. R. Evid. 313)

 

Section 400.650  Searches

 

a)         Searches Not Requiring Probable Cause

 

1)         General Rule.  Evidence obtained from reasonable searches not requiring probable cause conducted pursuant to this subsection (a) is admissible at trial when relevant and not otherwise in admissible under this Section or the U.S. Constitution as applicable to the armed forces.

 

2)         Border Searches.  Border searches for customs or immigration purposes may be conducted when authorized by Act of Congress.

 

3)         Searches Upon Entry or Exit from Illinois National Guard Installations, Aircraft and Vessels Abroad.  In addition to the authority to conduct inspections under Section 400.645, the Adjutant General or any commander to whom he or she delegates authority, may authorize appropriate personnel to search persons or the property of those 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.  These searches 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.  Failure to comply with a treaty or agreement, however, does not render a search unlawful within the meaning of Section 400.645.  A search made for the primary purpose of obtaining evidence for use in a trial by court-martial or other disciplinary proceedings is not authorized by this Section.

 

4)         Searches of Government Property.  Government property may be searched under this Section unless the person to whom the property is issued or assigned has a reasonable expectation of privacy in the government property at the time of the search.  Under normal circumstances, 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.

 

5)         Consent Searches

 

A)        General Rule.  Searches may be conducted of any person or property with lawful consent.

 

B)        Who May Consent.  A person may consent to a search of his or her person or property, or both, unless control over that property has been given to another.  A person may grant consent to search property when the person exercises control over that property.

 

C)        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.

 

D)        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 that 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.

 

E)        Burden of Proof.  Consent must be shown 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 burden of proof.

 

6)         Searches Incident to a Lawful Stop

 

A)        Stops.  A person authorized to apprehend under Code Section 7 and others performing law enforcement duties may stop another person temporarily 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 purpose of the stop must be investigatory in nature.

 

B)        Frisks.  When a lawful stop is performed, the person stopped may be frisked for weapons when that person is reasonably believed to be armed and presently dangerous.  Contraband or evidence located in the process of a lawful frisk may be seized.

 

C)        Motor Vehicles.  When a person lawfully stopped is the driver or a passenger in a motor vehicle, the passenger compartment of the vehicle may be searched for weapons if the official who made the stop has a reasonable belief that the person stopped is dangerous and that the person stopped may gain immediate control of a weapon.

 

7)         Searches Incident to a Lawful Apprehension.  A person who has been lawfully apprehended may be searched.

 

A)        Search for Weapons and Destructible Evidence.  A search may be conducted for weapons or destructible evidence, in the area within the immediate control of a person who has been apprehended.  The area within the person's "immediate control" is the area the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain the property; provided, that the passenger compartment of an automobile, and containers within the passenger compartment, may be searched as a contemporaneous incident of the apprehension of an occupant of the automobile, regardless whether the person apprehended has been removed from the vehicle.

 

B)        Examination for Other Persons

 

i)          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 the other persons might be located.  A reasonable examination under this subsection (a)(7)(B) 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.

 

ii)         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.

 

8)         Searches Within Jails, Confinement Facilities, or Similar Facilities.  Searches within jails, confinement facilities, or similar facilities may be authorized by persons with authority over the institution.

 

9)         Emergency Searches to Save Life or for Related Purposes.  In emergency circumstances to save life or for a related purpose, a search may be conducted of persons or property in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of medical aid, or to prevent immediate or ongoing personal injury.

 

10)        Searches of Open Fields or Woodlands.  A search of open fields or woodlands is not an unlawful search within the meaning of Section 400.635.

 

11)        Other Searches.  A search of a type not otherwise included in this Section and not requiring probable cause under subsection (b) may be conducted when permissible under the U.S. Constitution as applied to members of the armed forces. (Il. Mil. R. Evid. 314)

 

b)         Probable Cause Searches

 

1)         General Rule.  Evidence obtained from searches requiring probable cause conducted in accordance with this subsection (b) is admissible at trial when relevant and not otherwise inadmissible under this Section.

 

2)         Definitions.  As used in this subsection (b):

 

A)        "Authorization to Search" means an 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 that property, evidence or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner.

 

B)        "Search Warrant" means an express permission to search and seize issued by competent civilian authority.

 

3)         Scope of Authorization. A search authorization may be issued under this subsection (b) for a search of:

 

A)        Persons.  The person of anyone subject to military law or the law of war wherever found;

 

B)        Military Property.  Military property of the United States or the Illinois National Guard, or nonappropriated fund activities of U.S. armed forces, wherever located;

 

C)        Persons and Property Within Military Control.  Persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located.

 

4)         Power to Authorize.  Authorization to search pursuant to this subsection (b) may be granted by an impartial individual in the following categories:

 

A)        Commander.  A commander or other person serving in a position designated by the Adjutant General 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

 

B)        Military Judge.  A military judge or magistrate if authorized under regulations prescribed by the Adjutant General.  An otherwise impartial authorizing official does not lose the character 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 these previous authorization is similar in intent or function to a pretrial authorization made pursuant to the laws of  the jurisdiction where the search is to be conducted.

 

5)         Power to Search.  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 police, 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 subsection (b) or a search would otherwise be proper under subsection (b)(7).

 

6)         Basis for Search Authorizations

 

A)        Probable Cause Requirement.  A search authorization issued under this subsection (b) must be based upon probable cause.

 

B)        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 subsection (b)(6)(B) shall be based upon any or all of the following:

 

i)          Written statements communicated to the authorizing officer;

 

ii)         Oral statements communicated to the authorizing official in person, via telephone or by other appropriate means of communication; or

 

iii)        Such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion.

 

7)         Exigencies.  A search warrant or search authorization is not required under this subsection (b) for a search based on probable cause when:

 

A)        Insufficient Time.  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;

 

B)        Lack of Communications.  There is a reasonable military operational necessity that is reasonably believed to prohibit or prevent communication with a person empowered to grant a search warrant or authorization and 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;

 

C)        Search of Operable Vehicle.  An operable vehicle is to be searched, except in the circumstances in which a search warrant or authorization is required by the U.S. Constitution, the Code or this Manual; or

 

D)        Not Required by the Constitution.  A search warrant or authorization is not otherwise required by the U.S. Constitution as applied to members of the armed forces. For purpose of this subsection (b)(7), a vehicle is "operable" unless a reasonable person would have known at the time of search that the vehicle was not functional for purposes of transportation.

 

8)         Execution

 

A)        Notice.  If the person whose property is to be searched is present during a search conducted pursuant to a search authorization granted under this subsection (b), the person conducting the search should, when possible, notify the property holder of the act of authorization and the general substance of the authorization.  The notice may be made prior to or contemporaneously with the search.  Failure to provide notice does not make a search unlawful within the meaning of Section 400.635.

 

B)        Inventory.  Under regulations prescribed by the appropriate authority, and with such exceptions as may be authorized by the U.S. Secretary of Defense, an inventory of the property seized shall be made at the time of a seizure under this subsection (b) or as soon as practicable thereafter.  At an appropriate time, a copy of the inventory shall be given to a person from whose possession or premises the property was taken.  Failure to make an inventory, furnish a copy of the inventory, or otherwise comply with this subsection (b)(8)(B) does not render a search or seizure unlawful within the meaning of Section 400.635.

 

C)        Foreign Searches.  Execution of a search authorization outside the United States and within the jurisdiction of a foreign nation should be in conformity with existing agreements between the United States and the foreign nation.  Noncompliance with such an agreement does not make an otherwise lawful search unlawful.

 

D)        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 U.S. Constitution or an applicable Act of Congress. (Il. Mil. R. Evid. 315)

 

Section 400.655  Seizures

 

a)         General Rule.  Evidence obtained from seizures conducted in accordance with this Section is admissible at trial if the evidence was not obtained as a result of an unlawful search and if the evidence is relevant and not otherwise inadmissible under this Section.

 

b)         Seizure of Property.  Probable cause to seize property or evidence exists when there is a reasonable belief that the property or evidence is an unlawful weapon, contraband or evidence of crime, or might be used to resist apprehension or to escape.

 

c)         Apprehension.  Apprehension is governed by Code Section 7.

 

d)         Seizure of Property or Evidence

 

1)         Abandoned Property.  Abandoned property may be seized without probable cause and without a search warrant or search authorization.  The seizure may be made by any person.

 

2)         Consent.  Property or evidence may be seized with consent consistent with the requirements applicable to consensual searches under Section 400.650(a).

 

3)         Government Property.  Government property may be seized without probable cause and without a search warrant or search authorization by any person listed in subsection (e), unless the person to whom the property is issued or assigned has a reasonable expectation of privacy, as provided in Section 400.650(a)(4), at the time of the seizure.

 

4)         Other Property.  Property or evidence not included in subsections (d)(1) through (3) may be seized for use in evidence by any person listed in subsection (e) if:

 

A)        Authorization.  The person is authorized to seize the property or evidence by a search warrant or a search authorization under Section 400.650(b);

 

B)        Exigent Circumstances.  The person has probable cause to seize the property or evidence and, under Section 400.650(b)(7), 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.

 

5)         Temporary Detention.  Nothing in this Section shall prohibit temporary detention of property on less than probable cause when authorized under the U.S. Constitution.

 

e)         Power to 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 police, 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 Section.

 

f)         Other Seizures.  A seizure of a type not otherwise included in this Section may be made when permissible under the U.S. and Illinois Constitutions, as applied to members of the armed forces. (Il. Mil. R. Evid. 316)

 

Section 400.660  Eyewitness Identification

 

a)         Eyewitness identification in courts-martial shall be conducted in accordance with Section 107A-2 of the Illinois Code of Criminal Procedure (CCP).

 

b)         When the Section 107A-2 uses the following terms, for the purposes of this Manual those terms shall have meanings ascribed in this subsection (b).

 

1)         CCP Section 107A-2(b) requires law enforcement to adopt written guidelines for determining when simultaneous or sequential lineups shall be conducted. For purposes of this Manual, the NGIL-JA, in coordination with civilian law enforcement, will develop those guidelines.

 

2)         References in CCP Section 107A-2(i) to "State's Attorney" shall be considered under this Manual to be references to the "government's counsel".

 

3)         References in CCP Section 107A-2 to "the court" shall be read as "military judge".

 

Section 400.665  Relevant Evidence

 

a)         Definition.  "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (Il. Mil. R. Evid. 401)

 

b)         General Admissibility of Relevant Evidence

 

1)         All relevant evidence is admissible, except as otherwise provided by law.

 

2)         Evidence that is not relevant is not admissible. (Il. Mil. R. Evid. 402)

 

c)         Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (Il. Mil. R. Evid. 403)

 

Section 400.670  Character Evidence; Crimes or Other Acts

 

a)         Character Evidence

 

1)         Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity with that person's character on a particular occasion, except:

 

A)        Character of the Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut that evidence;

 

B)        Subject to the Limitations Imposed by Section 115-7 of the Code of Illinois Criminal Procedure:

 

i)          evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut that allegation; or

 

ii)         evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide or battery case to rebut evidence that the alleged victim was the first aggressor.

 

C)        Evidence of the character of a witness, as provided in Section 400.705(g), (h) and (i).

 

2)         Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity with that character, except as provided by Sections 115-7.3, 115-7.4 and 115-20 of the Code of Criminal Procedure.  The evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

 

3)         When the prosecution intends to offer evidence under subsection (a)(2), it must disclose the evidence, including statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial or during trial if the military judge excuses pretrial notice on good cause shown.  (Il. Mil. R. Evidence 404)

 

b)         Admissible Methods of Proving Character

 

1)         Definitions. For purposes of this subsection (b), the following definitions apply.

 

A)        "Community", in the SMF, means post, camp, base, ship, station, unit or other military organization, regardless of size.

 

B)        "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.  (Il. Mil. R. Evid. 405)

 

2)         In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.

 

3)         In cases in which character or a trait of character of a person is an essential element of the charge, claim or defense, proof may also be made of specific instances of that person's conduct.

 

4)         In criminal homicide or battery cases, when the accused raises the theory of self-defense and there is conflicting evidence as to whether the alleged victim was the aggressor, proof may also be made of specific instances of the alleged victim's prior conduct.

 

5)         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 subsection (b)(5), 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 this Subpart. (Il. Mil. R. Evid. 405)

 

Section 400.675  Habit and Routine Practice

 

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. (Il. Mil. R. Evid. 406)

 

Section 400.680  Subsequent Remedial Measures

 

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This Section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as:

 

a)         proving ownership, control or feasibility of precautionary measures, if controverted; or

 

b)         impeachment. (Il. Mil. R. Evid. 407)

 

Section 400.685  Compromise Offers; Offers of Reimbursement; Pleas

 

a)         Compromise

 

1)         Prohibited Uses of Evidence.  Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of, a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

 

A)        Furnishing, offering or promising to furnish, or accepting, offering or promising to accept, a valuable consideration in compromising or attempting to compromise the claim; and

 

B)        Conduct or statements made in the compromise negotiations regarding the claim.

 

2)         Permitted Uses of Evidence 

 

A)        This Section:

 

i)          does not require the exclusion of evidence otherwise discoverable merely because it is presented in the course of settlement negotiations; and

 

ii)         does not require exclusion if the evidence is offered for purposes not prohibited by subsection (a)(1).  

 

B)        Examples of permissible purposes include proving a witness' bias or prejudice; negating an assertion of undue delay; establishing bad faith and proving an effort to obstruct a criminal investigation or prosecution. (Il. Mil. R. Evid. 408)

 

b)         Offers to Pay Medical and Similar Expenses

In addition to the provisions of Section 8-1901 of the Code of Civil Procedure, 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. (Il. Mil. R. Evid. 409)

 

c)         Pleas, Plea Discussions and Related Statements

 

1)         Definitions 

 

A)        "Statement Made in the Course of Plea Discussions" means 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.

 

B)        "On the Record" means the written statement submitted by the accused in furtherance of a request for disposition.

 

2)         Except as otherwise provided in this Section, evidence of the following is not admissible in any court-martial proceeding against the accused who made the plea or was a participant in the plea discussions:

 

A)        a plea of guilty that was later withdrawn;

 

B)        a plea of nolo contendere;

 

C)        any statement made in the course of any judicial inquiry regarding either of the pleas is subsections (c)(2)(A) and (B); or

 

D)        any statement made in the course of plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government that do not result in a plea of guilty or that result in a plea of guilty later withdrawn.  However, such a statement is admissible:

 

i)          in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should, in fairness, be considered contemporaneously; or

 

ii)         in a court-martial proceeding for perjury or false statement if the statement was made by the accused under oath, on the record and in the presence of counsel. (Il. Mil. R. Evid. 410)

 

Section 400.690  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 or bias or prejudice of a witness. (Il. Mil. R. Evid. 411)

 

Section 400.695  Admissibility of Prior Sexual Activity and Offenses

 

a)         Admissibility

 

1)         When an accused is charged with predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, or criminal transmission of HIV, and in prosecutions for battery/aggravated battery that involve sexual penetration or sexual conduct, evidence of the prior sexual activity or the reputation of the alleged victim or corroborating witness is inadmissible except:

 

A)        as evidence concerning the past sexual conduct of the alleged victim or corroborating witness under Section 115-7.3 of the Code of Criminal Procedure with the accused when the evidence is offered by the accused upon the issue of whether the alleged victim or corroborating witness consented to the sexual conduct with respect to which the offense is alleged; or

 

B)        when constitutionally required to be admitted.

 

2)         No evidence admissible under this Section shall be introduced unless ruled admissible by the military judge after an offer of proof has been made at a hearing to be held in camera in order to determine whether the defense has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied.  The offer of proof shall include reasonably specific information as to the date, time and place of the past sexual conduct between the alleged victim or corroborating witness and the accused. 

 

3)         Unless the military judge finds that reasonably specific information as to the date, time or place, or some combination thereof, has been offered as to prior sexual activity with the accused, counsel for the accused shall be ordered to refrain from inquiring into prior sexual activity between the alleged victim or corroborating witness and the accused.

 

4)         The military judge shall not admit evidence under this Section unless he or she determines at the hearing that the evidence is relevant and the probative value of the evidence outweighs the danger of unfair prejudice. 

 

5)         The evidence shall be admissible at trial to the extent an order made by the military judge specifies the evidence that may be admitted and the areas with respect to which the alleged victim or corroborating witness may be examined or cross-examined. [725 ILCS 5/115-7]

 

6)         The military judge may not order mental examination of a sex victim.  Except when explicitly authorized by the Code of Criminal Procedure or by the Rules of the Supreme Court of Illinois, no military judge may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination. [725 ILCS 5/115-7.1]

 

7)         Pursuant to Section 115-7.2 of the Code of Criminal Procedure, in a prosecution for an illegal sexual act perpetrated upon a victim, testimony by an expert, qualified by the military judge relating to any recognized and accepted form of post-traumatic stress syndrome shall be admissible as evidence. [725 ILCS 5/115-7.2] (Il. Mil. R. Evid. 412)

 

b)         Similar Offenses

 

1)         Evidence in Certain Cases.  In a court-martial for an offense set forth in Section 115-7.3 of the Code of Criminal Procedure, or that of an identical or closely related offense under the law of the state where the offense occurred, evidence of the defendant's commission of another offense or offenses set forth in Section 115-7.3 is admissible, as provided in Section 115-7.3.

 

2)         Evidence in Domestic Violence Cases. In a court-martial for an offense related to domestic violence as set forth in Section 115-7.4 of the Code of Criminal Procedure, to include that of a related offense under the law of the state where the offense occurred, evidence of the defendant's commission of another offense or offenses of domestic violence is admissible, as provided in Section 115-7.4.

 

3)         Evidence of Prior Convictions.  In a criminal case for the type of offenses set forth in Section 115-20 of the Code of Criminal Procedure, evidence of the defendant's conviction for an offense set forth in that Section is admissible when the victim is the same person who was the victim of the previous offense that resulted in the conviction of the defendant, as provided in Section 115-20.

 

Section 400.700  Privilege

 

a)         General

 

1)         A person may not claim a privilege with respect to any matter except as required by or provided for in:

 

A)        The U.S. Constitution as applied to members of the armed forces;

 

B)        An Act of Congress applicable to trials by courts-martial;

 

C)        This Manual; or

 

D)        The principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to Rule 501 of the Federal Rules of Evidence insofar as the application of those principles in trials by courts-martial is practicable and not contrary to or inconsistent with the Code or this Manual.

 

2)         A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:

 

A)        Refuse to be a witness;

 

B)        Refuse to disclose any matter;

 

C)        Refuse to produce any object or writing; or

 

D)        Prevent another from being a witness or disclosing any matter or producing any object or writing.

 

3)         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.  Including any other provision of this Section, 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. (Il. Mil. R. Evid. 501)

 

b)         Lawyer-Client Privilege

 

1)         Definitions.  As used in this Section:

 

A)        "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.

 

B)        "Confidential Communication" or "Communication" means a communication 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)        "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 Code Section 1, unless the member:

 

i)          is detailed, assigned or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding;

 

ii)         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

 

iii)        is authorized to practice law and render professional legal services during off-duty employment.

 

D)        "Representative" means a lawyer or a person employed by or assigned to assist a lawyer in providing professional legal services.

 

2)         General Rule of Privilege.  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:

 

A)        to the client;

 

B)        between the client or the client's representative and the lawyer or the lawyer's representative;

 

C)        between the lawyer and the lawyer's representative;

 

D)        by the client or the client's lawyer to a lawyer representing another in a matter of common interest;

 

E)        between representatives of the client or between the client and a representative of the client; or

 

F)         between lawyers representing the client.

 

3)         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.

 

4)         Exceptions.  There is no privilege under this Section in the following circumstances:

 

A)        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;

 

B)        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;

 

C)        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;

 

D)        Document Attested to by Lawyer:  As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

 

E)        Joint Clients:  As to a communication relevant to a matter of common interest between 2 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. (Il. Mil. R. Evid. 502)

 

c)         Communications to Clergy

 

1)         Definitions.  As used in this subsection (c):

 

A)        "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.

 

B)        "Clergyman's Assistant" means a person employed by or assigned to assist a clergyman in his or her capacity as a spiritual advisor.

 

C)        "Confidential Communication" or "Communication" means a communication 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, that 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.

 

2)         General Rule of Privilege. 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 that communication is made either as a formal act of religion or as a matter of conscience.

 

3)         Who May Claim the Privilege.  The privilege may be claimed by the person, by the 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. (Il. Mil. R. Evid. 503)

 

d)         Husband-Wife Privilege

 

1)         Definitions.  As used in this subsection (d):

 

A)        "Confidential Communication" or "Communication" means a confidential communication 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.

 

B)        "A Child of Either" includes not only a biological child, adopted child, or ward of one of the spouses, but also 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 subsection (d) only, a child is:

 

i)          an individual under the age of 18; or

 

ii)         an individual over the age of 18 with a mental disability that results in the individual functioning at the capacity of a person under the age of 18.

 

C)        "Temporary Physical Custody" includes instances in which a parent entrusts his or her child to another.  There is no minimum amount of time necessary to establish temporary physical custody, nor must there be a written agreement.  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 in which a parent entrusts another with the care of his or her child for recurring care or during absences due to temporary duty or deployments.

 

2)         Spousal Incapacity.  A person has a privilege to refuse to testify against his or her spouse.

 

3)         Confidential Communication Made During Marriage

 

A)        General Rule of Privilege.  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 husband and wife and not separated as provided by law.

 

B)        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.

 

4)         Exceptions

 

A)        Spousal Incapacity Only.  There is no privilege under subsection (d)(2) when, at the time the testimony of one of the parties to the marriage is to be introduced in evidence against the other party, the parties are divorced or the marriage has been annulled.

 

B)        Spousal Incapacity and Confidential Communications.  There is no privilege under subsection (d)(2) or (3):

 

i)          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;

 

ii)         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 subsection (d)(2), 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 subsection (d)(3), the relationship was a sham at the time of the communication;

 

iii)        In proceedings in which a spouse is charged, in accordance with Code Section 133 or 134:

 

•           with importing the other spouse as an alien for prostitution or other immoral purposes in violation of 8 USC 1328;

 

•           with transporting the other spouse in interstate commerce for immoral purposes or other offense in violation of 18 USC 2421 through 2424; or

 

•           with violation of other similar statutes under which the privilege may not be claimed in the trial of criminal cases in the United States district courts; or

 

iv)        When both parties have been substantial participants in illegal activity, communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated. (Il. Mil. R. Evid. 504)

 

e)         Classified Information

 

1)         Definitions.  As used in this subsection (e):

 

A)        "Classified Information" means:

 

i)          any information or material that has been determined by the U.S. government, pursuant to an executive order, statute or regulations, to require protection against unauthorized disclosure for reasons of national security; and

 

ii)         any restricted data, as defined in Section 2014(6) of the federal Atomic Energy Act of 1954.

 

B)        "National Security" means the national defense and foreign relations of the United States. 

 

2)         General Rule of Privilege.  Classified information is privileged from disclosure if disclosure would be detrimental to the national security.  As with other rules of privilege, this rule applies to all stages of the proceedings.

 

3)         Who May Claim the Privilege.  The privilege may be claimed by the head of the concerned executive or military department or government agency based on a finding that the information is properly classified and that disclosure would be detrimental to the national security.  A person who may claim the privilege may authorize a witness or trial counsel to claim the privilege on his or her behalf.  The authority of the witness or trial counsel to do so is presumed in the absence of evidence to the contrary.

 

4)         Action Prior to Referral of Charges.  Prior to referral of charges, the convening authority shall respond in writing to a request by the accused for classified information if the privilege in this subsection (e) is claimed for that information.  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 the 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 action under subsections (e)(4)(A) through (D) cannot be taken without causing identifiable damage to the national security. Any objection by the accused to withholding of information or to the conditions of disclosure shall be raised through a motion for appropriate relief at a pretrial session.

 

5)         Pretrial Session.  At any time after referral of charges and prior to arraignment, any party may move for a session under Code Section 39(a) to consider matters relating to classified information that may arise in connection with the trial.  Following such motion or sua sponte, the military judge promptly shall hold a session under Code Section 39(a) to establish the timing of requests for discovery, the provision of notice under subsection (e)(8), and the initiation of the procedure under subsection (e)(9).  In addition, the military judge may consider any other matters that relate to classified information or that may promote a fair and expeditious trial.

 

6)         Action After Referral of Charges.  If a claim of privilege has been made under this subsection (e) 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 shall be reported to the convening authority.  The convening authority may:

 

A)        institute action to obtain the classified infor­mation for use by the military judge in making a determination under subsection (e)(9);

 

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.  If, after a reasonable period of time, the information is not provided to the military judge in circumstances in which proceeding with the case without that information would materially prejudice a substantial right of the accused, the military judge shall dismiss the charges or specifications or both to which the classified information relates.

 

7)         Disclosure of Classified Information to the Accused

 

A)        Protective Order.  If the government (i.e., the prosecution) agrees to disclose classified information to the accused, the military judge, at the request of the government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused.  The terms of the protective order may include provisions:

 

i)          Prohibiting the disclosure of the information, except as authorized by the military judge;

 

ii)         Requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;

 

iii)        Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

 

iv)        Requiring appropriate security clearances for persons having a need to examine the information in connection with the preparation of the defense.  All persons requiring security clearances shall cooperate with investigatory personnel in any investigations that are necessary to obtain a security clearance.

 

v)         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;

 

vi)        Regulating the making and handling of notes taken from material containing classified information; or

 

vii)       Requesting the convening authority to authorize the assignment of government security personnel and the provisions of government storage facilities.

 

B)        Limited Disclosure  

 

i)          The military judge, upon motion of the government, shall authorize the deletion of specified items of classified information from documents to be made available to the defendant, the substitution of a portion or summary of the information for the classified documents, or the substitution of a statement admitting relevant facts that the classified information 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.

 

ii)         The government's motion and any materials submitted in support of the motion shall, upon request of the government, be considered by the military judge in camera and shall not be disclosed to the accused.

 

C)        Disclosure of Certain Statements Previously Made by a Witness

 

i)          Scope.  After a witness called by the government has testified on direct examination, the military judge, on motion of the accused, may order production of statements in the possession of the government under Code Section 46.  This provision does not preclude discovery or assertion of a privilege otherwise authorized under this Manual.

 

ii)         Closed Session.  If the privilege in this subsection (e) is invoked during consideration of a motion under Code Section 46, the government may deliver the statement for the inspection only by the military judge in camera and may provide the military judge with an affidavit identifying the portions of the statement that are classified and the basis for the classification assigned.  If the military judge finds that disclosure of any portion of the statement identified by the government as classified could reasonably be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute or regulation and that such portion of the statement is consistent with the witness' testimony, the military judge shall excise that portion from the statement.  With the material excised, the military judge shall direct delivery of the statement to the accused for use by the accused.  If the military judge finds that the portion of the statement is inconsistent with the witness' testimony, the government may move for a proceeding under subsection (e)(9).

 

D)        Record of Trial.  If, under this subsection (e), any information is withheld from the accused, the accused objects to that 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 government's motion and any materials submitted in support of the motion, shall be sealed and attached to the record of trial as an appellate exhibit.  This material shall be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.

 

8)         Notice of the Accused's Intentions to Disclose Classified Information

 

A)        Notice by the Accused.  If the accused reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with a court-martial proceeding, the accused shall notify the trial counsel in writing of that intention and file a copy of the notice with the military judge.  The notice shall be given within the time specified by the military judge under subsection (e)(5) or, if no time has been specified, prior to arraignment of the accused.

 

B)        Continuing Duty to Notify.  Whenever the accused learns of classified information not covered by a notice under subsection (e)(8)(A) that the accused reasonably expects to disclose at any proceeding, the accused shall notify the trial counsel and the military judge in writing as soon as possible thereafter.

 

C)        Content of Notice.  The notice required by this subsection (e)(8) shall include a brief description of the classified information.  The description, to be sufficient, must be more than a mere general statement of the areas about which evidence may be introduced.  The accused must state, with particularity, which items of classified information he or she reasonably expects will be revealed by his or her defense.

 

D)        Prohibition Against Disclosure.  The accused may not disclose any information known or believed to be classified until notice has been given under this subsection (e)(8) and until the government has been afforded a reasonable opportunity to seek a determination under subsection (e)(9).

 

E)        Failure to Comply.  If the accused fails to comply with the requirements of this subsection (e)(8), the military judge may preclude disclosure of any classified information not made the subject of notification and may prohibit the examination by the accused of any witness with respect to any such information.

 

9)         In Camera Proceedings for Cases Involving Classified Information

 

A)        Definition.  For purposes of this subsection (e)(9), an "in camera proceeding" is a session under Code Section 39(a) from which the public is excluded.

 

B)        Motion for In Camera Proceeding.  Within the time specified by the military judge for the filing of a motion under this subsection (e), the government may move for an in camera proceeding concerning the use at any proceeding of any classified information.  Thereafter, either prior to or during trial, the military judge, for good cause shown or otherwise upon a claim of privilege under this subsection (e) may grant the government leave to move for an in camera proceeding concerning the use of additional classified information.

 

C)        Demonstration of National Security Nature of the Information.  In order to obtain an in camera proceeding under this subsection (e)(9), the government shall submit the classified information and an affidavit ex parte for examination by the military judge only.  The affidavit shall demonstrate that disclosure of the information reasonably could be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute or regulation.

 

D)        In Camera Proceeding

 

i)          Procedure.  Upon finding that the government has met the standard set forth in subsection (e)(9)(C) with respect to some or all of the classified information at issue, the military judge shall conduct an in camera proceeding.  Prior to the in camera proceeding, the government shall provide the accused with notice of the information that will be at issue.  This notice shall identify the classified information that will be at issue whenever that information previously has been made available to the accused in connection with proceedings in the same case.  The government may describe the information by generic category, in such form as the military judge may approve, rather than identifying the classified information, when the government has not previously made the information available to the accused in connection with pretrial proceedings.  Following briefing and argument by the parties in the in camera proceeding, the military judge shall determine whether the information may be disclosed at the court-martial proceeding.  When the government's motion under subsection (e)(5) is filed prior to the proceeding at which disclosure is sought, the military judge shall rule prior to the commencement of the relevant proceeding.

 

ii)         Standard.  Classified information is not subject to disclosure under this subsection (e) 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 shall be admitted only if no unclassified version of that information is available.

 

iii)        Ruling.  Unless the military judge makes a written determination that the information meets the standard set forth in subsection (e)(9)(D)(ii), the information may not be disclosed or otherwise elicited at a court-martial proceeding.  The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit.  The accused may seek reconsideration of the determination prior to or during trial.

 

iv)        Alternatives to Full Disclosure.  If the military judge makes a determination under this subsection (e)(9) that would permit disclosure of the information, or if the government elects not to contest the relevance, necessity and admissibility of any classified information, the government may proffer a statement admitting, for purposes of the proceeding, any relevant facts the information would tend to prove.  The government may submit a portion of summary to be used in lieu of the information.  The military judge shall order that the statement, portion or summary be used by the accused in place of the classified information unless the military judge finds that use of the classified information itself is necessary to afford the accused a fair trial.

 

v)         Sanctions.  If the military judge determines that alternatives to full disclosure may not be used and the government continues to object to disclosure of the information, the military judge shall issue any order that the interests of justice require, including an order:

 

•           striking or precluding all or part of the testimony of a witness;

 

•           declaring a mistrial;

 

•           finding against the government on any issue as to which the evidence is relevant and material to the defense;

 

•           dismissing the charges, with or without prejudice; or

 

•           dismissing the charges or specifications, or both, to which the information relates.

 

vi)        Any such order shall permit the government to avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.

 

10)        Introduction of Classified Information

 

A)        Classification Status.  Writing, recordings and photographs containing classified information may be admitted into evidence without change in their classification status.

 

B)        Precautions by the Military Judge.  In order to prevent unnecessary disclosure of classified information, the military judge may order admission into evidence of:

 

i)          only part of a writing, recording or photograph; or

 

ii)         the whole writing, recording or photograph with excision of some or all of the classified information.

 

C)        Contents of Writing, Recording or Photograph.  The military judge may permit proof of the contents of a writing, recording or photograph that contains classified information without requiring introduction into evidence of the original or a duplicate. 

 

D)        Taking of Testimony.  During the examination of a witness, the government (i.e., the prosecution) may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be relevant and necessary to the defense.  Following such an objection, the military judge shall take suitable action to determine whether the response is admissible, considering whether the action will safeguard against the compromise of any classified information.  The action may include requiring:

 

i)          the government to provide the military judge with a proffer or the witness' response to the question or line of inquiry; and

 

ii)         the accused to provide the military judge with a proffer of the nature of the information the accused seeks to elicit.

 

E)        Closed Session.  The military judge may exclude the public during that portion of the presentation of evidence that discloses classified information.

 

F)         Record of Trial.  The record of trial with respect to any classified matter will be prepared in accordance with Code Section 54 and RCM 1103(h) and 1104(b)(1)(D).

 

11)        Security Procedures to Safeguard Against Compromise of Classified Information Disclosed to Courts-Martial.  The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities. (Il. Mil. R. Evid. 505)

 

f)         Government Information Other Than Classified Information

 

1)         General Rule of Privilege.  Except when disclosure is required by law, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

 

2)         Scope.  "Government information" includes official communication and documents and other information within the custody or control of the government.  This subsection (f) does not apply to classified information, which is addressed in subsection (e), or to the identity of an informant, which is addressed in subsection (g).

 

3)         Who May Claim the Privilege.  The privilege may be claimed by the head 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.

 

4)         Action Prior to Referral of Charges.  Prior to referral of charges, the government shall respond in writing to a request for government information if the privilege in this subsection (f) is claimed for that information.  The government shall:

 

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 those documents;

 

C)        substitute a statement admitting relevant facts that government information would tend to prove;

 

D)        provide the document subject to conditions similar to those set forth in subsection (f)(7); or

 

E)        withhold disclosure if actions under (f)(4)(A) through (D) cannot be taken without causing identifiable damage to the public interest.

 

5)         Pretrial Session.  At any time after referral of charges and prior to arraignment, any party may move for a session under Code Section 39(a) to consider matters relating to government information that may arise in connection with the trial.  Following that motion, or sua sponte, the military judge promptly shall hold a pretrial session under Code Section 39(a) to establish the timing of requests for discovery, the provision of notice under subsection (f)(8), and the initiation of the procedure under subsection (f)(9).  In addition, the military judge may consider any other matters that relate to government information or that may promote a fair and expeditious trial.

 

6)         Action After Motion for Disclosure of Information.  After referral of charges, if the defense moves for disclosure of government information for which a claim of privilege has been made under this subsection (f), the matter shall 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 subsection (f)(9);

 

B)        dismiss the charges;

 

C)        dismiss the charges or specifications, or both, to which the information relates; or

 

D)        take other action as may be required in the interests of justice.  If, after a reasonable period of time, the information is not provided to the military judge, the military judge shall dismiss the charges or specifications or both to which the information relates.

 

7)         Disclosure of Government Information to the Accused.  If the government agrees to disclose government information to the accused subsequent to a claim of privilege under this subsection (f), the military judge, at the request of the government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused.  The terms of any such protective order may include provisions:

 

A)        Prohibiting the disclosure of the information, except as authorized by the military judge;

 

B)        Requiring storage of the material in a manner appropriate for the nature of the material to be disclosed, upon reasonable notice;

 

C)        Requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

 

D)        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;

 

E)        Regulating the making and handling of notes taken from material containing government information; or

 

F)         Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

 

8)         Prohibition Against Disclosure.  The accused may not disclose any information known or believed to be subject to a claim of privilege under this subsection (f) unless the military judge authorizes that disclosure.

 

9)         In Camera Proceedings in Cases Involving Nonclassified Government Information

 

A)        Definition. For the purpose of this subsection (f)(8), an "in camera proceeding" is a session under Code Section 39(a) from which the public is excluded.

 

B)        Motion for In Camera Proceeding.  Within the time specified by the military judge for the filing of a motion under this subsection (f)(9), the government may move for an in camera proceeding concerning the use at any proceeding of any government information that may be subject to a claim of privilege.  Thereafter, either prior to or during trial, the military judge, for good cause shown, or otherwise upon a claim of privilege, may grant the government leave to move for an in camera proceeding concerning the use of additional government information.

 

C)        Demonstration of Damage to the Public Interest.  In order to obtain an in camera proceeding under this subsection (f)(9), the government shall demonstrate, through the submission of affidavits and information for examination only by the military judge, that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest.

 

D)        In Camera Proceedings

 

i)          Finding of Identifiable Damage.  Upon finding that the disclosure of some or all of the information submitted by the government under subsection (f)(9)(C) reasonably could be expected to cause identifiable damage to the public interest, the military judge shall conduct an in camera proceeding.

 

ii)         Disclosure of the Information to the Defense.  Subject to subsection (f)(9)(D)(vi), the government shall disclose government information for which a claim of privilege has been made to the accused, for the limited purpose of litigating in camera the admissibility of the information at trial.  The military judge shall enter an appropriate protective order to the accused and all other appropriate trial participants concerning the disclosure of the information according to subsection (f)(7).  The accused shall not disclose any information provided under this subsection (f)(9)(D)(ii) unless, and until, that information has been admitted into evidence by the military judge.  In the in camera proceeding, both parties shall have the opportunity to brief and argue the admissibility of the government information at trial.

 

iii)        Standard.  Government information is subject to disclosure at the court-martial proceeding under this subsection (f)(9)(D)(iii) 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.

 

iv)        Ruling.  No information may be disclosed at the court-martial proceeding or otherwise unless the military judge makes a written determination that the information is subject to disclosure under the standard set forth in subsection (f)(9)(D)(iii).  The military judge will specify in writing any information that he or she determines is subject to disclosure.  The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit.  The accused may seek reconsideration of the determination prior to or during trial.

 

v)         Alternatives to Full Disclosure.  If the military judge makes a determination under this subsection (f)(9) that the information is subject to disclosure, or if the government elects not to contest the relevance, necessity and admissibility of the government information, the government may proffer a statement admitting, for purposes of the court-martial, any relevant facts the information would tend to prove.  The government may submit a portion or summary to be used in lieu of the information.  The military judge shall order that the statement, portion or summary, or some other form of information the military judge finds to be consistent with the interests of justice, be used by the accused in place of the government information unless the military judge finds that use of the government information itself is necessary to afford the accused a fair trial.

 

vi)        Sanctions.  Government information may not be disclosed over the government's objection.  If the government continues to object to disclosure of the information following rulings by the military judge, the military judge shall issue any order that the interests of justice require, including an order:

 

•           striking or precluding all or part of the testimony of a witness;

 

•           declaring a mistrial;

 

•           finding against the government on any issue as to which the evidence is relevant and necessary to the defense;

 

•           dismissing the charges, with or without prejudice; or

 

•           dismissing the charges or specifications, or both, to which the information relates.

 

10)       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 State 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.

 

11)        Introduction of Government Information Subject to a Claim of Privilege

 

A)        Precautions by Military Judge.  In order to prevent unnecessary disclosure of government information after there has been a claim of privilege under this subsection (f), the military judge may order admission into evidence of:

 

i)          only part of a writing, recording or photograph; or

 

ii)         the whole writing, recording or photograph with excision of some or all of the government information.

 

B)        Contents of Writing, Recording or Photograph.  The military judge may permit proof of the contents of a writing, recording or photograph that contains government information that is the subject of a claim of privilege under this subsection (f) without requiring introduction into evidence of the original or a duplicate.

 

C)        Taking of Testimony.  During examination of a witness, the prosecution may object to any question or line of inquiry that may require the witness to disclose government information not previously found relevant and necessary to the defense if that information has been or is reasonably likely to be the subject of a claim of privilege under this subsection (f).  Following such an objection, the military judge shall take suitable action to determine if the response is admissible, considering whether the action will safeguard against the compromise of any government information.  The action may include requiring:

 

i)          the government to provide the military judge with a proffer of the witness' response to the question or line of inquiry; and

 

ii)         the accused to provide the military judge with a proffer of the nature of the information the accused seeks to elicit.

 

12)        Procedures to Safeguard Against Compromise of Government Information Disclosed to Courts-Martial.  The Secretary of Defense or the Adjutant General may prescribe procedures for protection against the compromise of government information submitted to courts-martial and appellate authorities after a claim of privilege. (Il. Mil. R. Evid. 506)

 

g)         Identity of Informants

 

1)         Rule of Privilege.  The United States or a State or subdivision thereof has a privilege to refuse to disclose the identity of an informant.  An "informant" is 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.  Unless otherwise privileged under this Section, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant's identity.

 

2)         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 shall not be allowed if the prosecution objects.

 

3)         Exceptions

 

A)        Voluntary Disclosures; Informant as Witness.  No privilege exists under this subsection (g): 

 

i)          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

 

ii)         if the informant appears as a witness for the prosecution.

 

B)        Testimony on the Issue of Guilt or Innocence.  If a claim of privilege has been made under this subsection (g), the military judge shall, 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 another 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.

 

C)        Legality of Obtaining Evidence.  If a claim of privilege has been made under this subsection (g) with respect to a motion under Section 400.635, the military judge shall, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the U.S. 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.

 

4)         Procedures.  If a claim of privilege has been made under this subsection (g), the military judge may make any order required by the interests of justice.  If the military judge determines that disclosure of the identity of the informant is required under the standards set forth in this subsection (g), and the prosecution elects not to disclose the identity of the informant, the matter shall 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.  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. (Il. Mil. R. Evid. 507)

 

h)         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. (Il. Mil. R. Evid. 508)

 

i)          Deliberations of Courts and Juries.  Except as provided in Section 400.705(f), the deliberations of courts, courts-martial, military judges, and grand and petit juries are privileged to the extent that the deliberations are privileged, but the results of the deliberations are not privileged. (Il. Mil. R. Evid. 509)

 

j)          Waiver of Privilege by Voluntary Disclosure

 

1)         A person upon whom this Section confers 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 subsection (j)(1) does not apply if the disclosure is itself a privileged communication.

 

2)         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. (Il. Mil. R. Evid. 510)

 

k)         Disclosure Under Compulsion or Without Opportunity to Claim Privilege

1)         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.

 

2)         The telephonic transmission of information otherwise privileged under this Section does not affect its privileged character.  Use of electronic means of communication other than the telephone for transmission of information otherwise privileged under this Section does not affect the privileged character of that information if use of electronic means of communication is necessary and in furtherance of the communication. (Il. Mil. R. Evid. 511)

 

l)          Comment Upon or Inference from Claim of Privilege; Instruction

 

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 from that claim of privilege.

 

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 from that claim of privilege except when determined by the military judge to be required by the interests of justice.

 

3)         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.  This subsection (l)(3) does not apply to a special court-martial without a military judge.

 

4)         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 from the claim except as provided in subsection (l)(2). (Il. Mil. R. Evid. 512)

 

m)        Psychotherapist and Patient Privilege

 

1)         Definitions. For purposes of this subsection (m):

 

A)        "Assistant to a Psychotherapist" or "Assistant" means a person directed by or assigned to assist a psychotherapist in providing professional services, or who is reasonably believed by the patient to be an assistant to a psychotherapist.

 

B)        "Confidential Communication" or " Communication" 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 transmission of the communication.

 

C)        "Evidence of a Patient's Records or Communications" means testimony of a psychotherapist or assistant psychotherapist, or patient records, that pertain to communications by a patient to a psychotherapist or assistant to a psychotherapist for the purposes of diagnosis or treatment of the patient's mental or emotional condition.

 

D)        "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.

 

E)        "Psychotherapist" means a psychiatrist, clinical psychologist or clinical social worker 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 these services from any military health care facility, or is a person reasonably believed by the patient to have the appropriate license or credentials.

 

2)         General Rule of Privilege.  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 assistant, in a case arising under the UCMJ, if the communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.

 

3)         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 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.

 

4)         Exceptions.  There is no privilege under this subsection (m):

 

A)        when the patient is dead;

 

B)        when the communication is evidence of child abuse or neglect, or in a proceeding in which one spouse is charged with a crime against a child of either spouse;

 

C)        when federal law, State law, or service regulation imposes a duty to report information contained in a communication;

 

D)        when a psychotherapist or assistant believes that a patient's mental or emotional condition makes the patient a danger to any person, including the patient;

 

E)        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;

 

F)         when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information or the accomplishment of a military mission;

 

G)        when an accused offers statements or other evidence concerning his or her mental condition in defense, extenuation or mitigation, under circumstances not covered by Section 400.615.  In these 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; or

 

H)        when admission or disclosure of a communication is constitutionally required.

 

5)         Procedure to Determine Admissibility of Patient Records or Communications

 

A)        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 shall:

 

i)          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

 

ii)         serve the motion on the opposing party and 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 subsection (m)(5)(B).

 

B)        Before ordering the production or admission of evidence of a patient's records or communication, the military judge shall conduct a hearing.  Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed.  At the hearing, the parties may call witnesses, including the patient, and offer other relevant evidence.  The patient shall be afforded a reasonable opportunity to attend the hearing and be heard at the patient's own expense unless the patient has been otherwise subpoenaed or ordered to appear at the hearing.  However, the proceedings shall not be unduly delayed for this purpose.  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.

 

C)        The military judge shall examine the evidence or a proffer of evidence in camera, if that examination is necessary to rule on the motion.

 

D)        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.

 

E)        The motion, related papers, and record of the hearing shall be sealed and shall remain under seal unless the military judge or an appellate court orders otherwise. (Il. Mil. R. Evid. 513)

 

n)         Victim Advocate and Safe Helpline Privilege

 

1)         Definitions.  As used in this subsection (n):

 

A)        "Assistant to a Victim Advocate" or "Assistant" means a person directed by or assigned to assist a victim advocate in providing victim and victim advocate services or who is reasonably believed by the victim to be an Assistant to a victim advocate.

 

B)        "Confidential Communication" or "Communication" means a communication made to a victim advocate acting in the capacity of a victim advocate that is not intended to be disclosed to third persons other than:

 

i)          those to whom disclosure is made in furtherance of the rendition of advice or assistance to the victim; or

 

ii)         an assistant to a victim advocate reasonably necessary for transmission of the communication.

 

C)        "Evidence of a Victim's Records or Communications" means testimony of a victim advocate, or record that pertains to communications by a victim to a victim advocate, for the purposes of advising or providing supportive assistance to the victim.

 

D)        "Victim" means any person who suffered direct physical or emotional harm as the result of a sexual or violent offense.

 

E)        "Victim Advocate" means a person who is:

 

i)          designated in writing as a victim advocate;

 

ii)         authorized to perform victim advocate duties in accordance with service regulations, and acting in the performance of those duties; or

 

iii)        certified as a victim advocate pursuant to federal or State requirements.

 

2)         General Rule of Privilege.  A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication between the victim and a victim advocate, in a case arising under the UCMJ, if that communication was made for the purpose of facilitating advice or supportive assistance to the victim.

 

3)         Who May Claim the Privilege.  The privilege may be claimed by the victim or any 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 the a victim advocate, guardian or conservator, or a defense counsel representing the victim, to so assert the privilege is presumed in the absence of evidence to the contrary.

 

4)         Exceptions.  There is no privilege under this subsection (n):

 

A)        when the victim is dead;

 

B)        when federal law, State law or service regulation imposes a duty to report information contained in a communication;

 

C)        if the communication clearly contemplated the future commission of a fraud or crime or if the services of the victim advocate 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;

 

D)        when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information or completion of a mission;

 

E)        when necessary to ensure the safety of any other person (including the victim) when a victim advocate believes that a victim's mental or emotional condition makes the victim a danger; or

 

F)         when admission or disclosure of a communi­cation is constitutionally required.

 

5)         Procedure to Determine Admissibility of Victim Records or Communications

 

A)        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 shall:

 

i)          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

 

ii)         serve the motion on the opposing party and the military judge and, if practical, 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 subsection (n)(5)(B).

 

B)        Before ordering the production or admission of evidence of a victim's records or communication, the military judge shall conduct a hearing. Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed.  At the hearing, the parties may call witnesses, including the victim, and offer other relevant evidence.  The victim shall be afforded a reasonable opportunity to attend the hearing and be heard at the victim's own expense unless the victim has been otherwise subpoenaed or ordered to appear at the hearing.  However, the proceedings shall not be unduly delayed for this purpose.  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.

 

C)        The military judge shall examine the evidence or a proffer thereof in camera, if that examination is necessary to rule on the motion.

 

D)        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.

 

E)        The motion, related papers, and record of the hearing shall be sealed and shall remain under seal unless the military judge or an appellate court orders otherwise. (Il. Mil. R. Evid. 514)

 

Section 400.705  Witnesses

 

a)         Competency to Testify.  Every person is competent to be a witness unless this Section provides otherwise. (Il. Mil. R. Evid. 601)

 

b)         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, but need not, consist of the witness' own testimony.  This subsection (b) is subject to the provisions of Section 400.715(a)(2) relating to the opinion testimony by expert witnesses. (Il. Mil. R. Evid. 602)

 

c)         Oath or Affirmation to Testify Truthfully.  Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. (Il. Mil. R. Evid. 603)

 

d)         Interpreter.  An interpreter is subject to the provisions of this Section relating to qualifications as an expert and the administration of an oath or affirmation that the interpreter will make a true translation. (Il. Mil. R. Evid. 604)

 

e)         Military Judge's Competency as a Witness

 

1)         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.

 

2)         This Section does not preclude the military judge from placing on the record matters concerning docketing of the case. (Il. Mil. R. Evid. 605)

 

f)         Member's Competency as a Witness

 

1)         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.

 

2)         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, except that a member may testify on the question of whether extraneous prejudicial information was improperly brought to the attention of the members of the court-martial and whether any outside influence was improperly brought to bear upon any member, or whether there was unlawful command influence.  The military judge may not receive a member's affidavit or evidence of a member's statement on these matters.

 

3)         Exception.  A member may testify about whether:

 

A)        extraneous prejudicial information was improperly brought to the member's attention;

 

B)        unlawful command influence or any other outside influence was improperly brought to bear on any member; or

 

C)        a mistake was made in entering the finding or sentence on the finding or sentence forms. (Il. Mil. R. Evid. 606)

 

g)         Who May Impeach a Witness.  The credibility of a witness may be attacked by any party, including the party calling the witness, except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon showing of an affirmative damage.  This subsection (g) does not apply to statements admitted pursuant to Section 400.720(a)(2), (a)(3) or (c). (Il. Mil. R. Evid. 607)

 

h)         A Witness's Character for Truthfulness or Untruthfulness

 

1)         Opinion and Reputation Evidence of Character.  The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to these limitations:

 

A)        the evidence may refer only to character for truthfulness or untruthfulness; and

 

B)        evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

 

2)         Specific Instances of Conduct  

 

A)        Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in Section 400.705(i), may not be proved by extrinsic evidence. 

 

B)        They may, however, in the discretion of the military judge, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:

 

i)          concerning character of the witness for truthfulness or untruthfulness; or

 

ii)         concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. 

 

C)        The giving of testimony, whether by an accused or by another witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

 

3)         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. (Il. Mil. R. Evid. 608)

 

i)          Impeachment by Evidence of a Criminal Conviction

 

1)         General Rule 

 

A)        For the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime:

 

i)          was punishable by death, dishonorable discharge or imprisonment in excess of one year under the law under which the witness was convicted; or

 

ii)         involved dishonesty or false statement regardless of the punishment.

 

B)        In either instance described in subsection (i)(1)(A), the court shall determines whether the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.

 

2)         Time limit.  Evidence of a conviction under this Manual is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from confinement, whichever is later.

 

3)         Effect of Pardon, Annulment or Certificate of Rehabilitation.  Evidence of a conviction is not admissible under this subsection (i) if:

 

A)        the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure; and

 

B)        the procedure under which the procedure listed in subsection (i)(3)(A) was granted or issued required a substantial showing of rehabilitation or was based on innocence.

 

4)         Juvenile Adjudications.  Evidence of juvenile adjudications is generally not admissible under this subsection (i).  The military judge may, however, allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult, and the military judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

 

5)         Pendency of Appeal.  The pendency of an appeal from the underlying criminal conviction does not render evidence of that conviction inadmissible. Evidence of the pendency of an appeal is admissible. (Il. Mil. R. Evid. 609)

 

j)          Religious Beliefs or Opinions.  Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that, by reason of his or her nature, the witness' credibility is impaired or enhanced. (Il. Mil. R. Evid. 610)

 

k)         Mode and Order of Examining Witnesses and Presenting Evidence

 

1)         Control by the Military Judge.  The military judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

 

A)        make the interrogation and presentation effective for the ascertainment of the truth;

 

B)        avoid needless consumption of time; and

 

C)        protect witnesses from harassment or undue embarrassment.

 

2)         Scope of Cross-Examination.  Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.  The military judge may, in the exercise of his or her discretion, permit inquiry into additional matters as if on direct examination.

 

3)         Leading Questions.  Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness.  Ordinarily, leading questions should be permitted on cross-examination.  When a party calls a hostile witness or an unwilling witness or an adverse party or an agent of an adverse party, as defined by Section 2-1102 of the Code of Civil Procedure, interrogation may be by leading questions.

 

4)         Remote Live Testimony of a Child

 

A)        In a case involving abuse of a child or domestic violence, the military judge shall, subject to the requirements of subsection (k)(4)(C), allow a child victim or witness to testify from an area outside the courtroom.

 

B)        Definitions.  For purposes of this subsection (k)(4):

 

i)          "Child" means a person who is under the age of 16 at the time of his or her testimony; 

 

ii)         "Abuse of a Child" means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child;

 

iii)        "Exploitation" means child pornography or child prostitution;  

 

iv)        "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;  

 

v)         "Domestic Violence" means an offense that has as an element the use, attempted use, or threatened use of physical force against a person and is committed by:

 

•           a current or former spouse, parent or guardian of the victim;

 

•           a person with whom the victim shares a child in common;

 

•           a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian; or

 

•           a person similarly situated to a spouse, parent or guardian.

 

C)        Remote live testimony will be used only when the military judge makes a finding on the record that a child is unable to testify in open court in the presence of the accused, for any of the following reasons:

 

i)          The child is unable to testify because of fear;

 

ii)         There is substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying;

 

iii)        The child suffers from a mental or other infirmity; or

 

iv)        Conduct by an accused or defense counsel causes the child to be unable to continue testifying.

 

D)        Remote live testimony of a child shall not be utilized when the accused elects to absent himself or herself from the court room. (Il. Mil. R. Evid. 612)

 

l)          Writing Used to Refresh a Witness' Memory

 

1)         If a witness uses a writing to refresh his or her memory for the purpose of testifying, either while testifying or before testifying, if the military judge determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness on that writing, and to introduce in evidence for the purpose of impeachment those portions that relate to the testimony of the witness.

 

2)         If it is claimed that the writing contains privileged information or matters not related to the subject matter of the testimony, the military judge shall examine the writing in camera, excise any privileged information or unrelated portions, and order delivery of the remainder to the entitled party. Any portion withheld over objections shall be attached to the record of trial as an appellate exhibit.

 

3)         If a writing is not produced or delivered pursuant to order under this subsection (l), the military judge shall make any order justice requires, except that, when the prosecution elects not to comply, the order shall:

 

A)        strike the testimony; or

 

B)        if, in his or her discretion, the military judge determines that the interests of justice so require, declare a mistrial.

 

4)         This subsection (l) does not preclude disclosure of information required to be disclosed under other provisions of this Manual. (Il. Mil. R. Evid. 612)

 

m)        Witness' Prior Statement

 

1)         Examining Witness Concerning Prior Statement.  In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request it shall be shown or disclosed to opposing counsel.

 

2)         Extrinsic Evidence of Prior Inconsistent Statement of Witness.  Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is first afforded an opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement, or the interests of justice otherwise require.  This provision does not apply to admissions in Section 400.720(a)(2)(B).

 

n)         Calling and Interrogation of Witnesses by the Court-Martial

 

1)         Calling by the Court-Martial.  The military judge may, sua sponte, or at the request of the members or the suggestion of a party, call witnesses.  All parties are entitled to cross-examine those witnesses.  The military judge shall determine whether it is appropriate to recall a witness under this Manual.

 

2)         Interrogation by the Court-Martial.  The military judge or members may interrogate witnesses, whether called by the military judge, the members or a party.  Members shall submit their questions to the military judge in writing so that a ruling may be made on the propriety of the questions or the course of questioning and so that questions may be asked on behalf of the court by the military judge in a form acceptable to the military judge.  When a witness who has not testified previously is called by the military judge or the members, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.

 

3)         Objections.  Objections to 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. (Il. Mil. R. Evid. 614)

 

o)         Excluding Witnesses

At the request of the prosecution or defense, the military judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the military judge may make the orders sua sponte.  This subsection (o) does not authorize exclusion of:

 

1)         the accused;

 

2)         a member of an armed service or an employee of the United States or of the State of Illinois designated as a representative of the United States or of the State of Illinois by the trial counsel;

 

3)         a person whose presence is shown by a party to be essential to the presentation of the party's case;

 

4)         a person authorized by statute to be present at courts-martial; or

 

5)         any victim of an offense from the trial of an accused for that offense because that victim may testify or present any information in relation to the sentence or that offense during the presentencing proceedings. (Il. Mil. R. Evid. 615)

 

Section 400.710  Opinion Testimony by Lay Witnesses

 

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences that are:

 

a)         rationally based on the perception of the witness;

 

b)         helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and

 

c)         not based in scientific, technical or other specialized knowledge within the scope of Section 400.715(a). (Il. Mil. R. Evid. 701)

 

Section 400.715  Expert Testimony; Polygraph Examinations

 

a)         Expert Witnesses

 

1)         Testimony by Expert Witnesses

 

A)        If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.

 

B)        When an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. (Il. Mil. R. Evid. 702)

 

2)         Bases of an Expert's Opinion Testimony

 

A)        The facts or date in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. 

 

B)        If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.  (Il. Mil. R. Evid. 703)

 

3)         Opinion on an Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  (Il. Mil. R. Evid. 704)

 

4)         Disclosing the Facts or Data Underlying an Expert's Opinion

 

A)        The expert may testify in terms of opinion or inference and give the expert's reason for the opinion or reference without prior disclosure of the underlying facts or data, unless the military judge requires otherwise.

 

B)        The expert may, in any event, be required to disclose the underlying facts or data on cross-examination.  (Il. Mil. R. Evid. 705)

 

5)         Court-Appointed Expert Witnesses

 

A)        Appointment and Compensation.  The trial counsel, the defense counsel, and the court-martial have equal opportunity to obtain expert witnesses under Code Section 46.

 

B)        Disclosure of Employment.  In the exercise of discretion, the military judge may authorize disclosure to the members of the fact that the military judge called an expert witness.

 

C)        Accused's Experts of Own Selection.  Nothing in this subsection (a)(5) limits the accused in calling expert witnesses of the accused's own selection and at the accused's own expense.  (Il. Mil. R. Evid. 706)

 

b)         Polygraph Examinations

 

1)         Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.

 

2)         Nothing in this subsection (b) is intended to exclude from evidence statements made during a polygraph examination that are otherwise admissible. (Il. Mil. R. Evid. 707)

 

Section 400.720  Hearsay Exclusions

 

a)         Definitions.  The following definitions apply to this Section:

 

1)         "Declarant" means a person who makes a statement.

 

2)         "Hearsay" means a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A statement is not hearsay if it is:

 

A)        a prior statement by the witness.  In a criminal case, the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

 

i)          inconsistent with the declarant's testimony at the trial or hearing, and:

 

•           was made under oath at a trial, hearing or other proceeding or in a deposition;

 

•           narrates, describes or explains an event or condition of which the declarant had personal knowledge, and the statement is proved to have been written or signed by the declarant;

 

•           the declarant acknowledged under oath the making of the statement in his or her testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought; at another trial, hearing or other proceeding; or in a deposition; or

 

•           the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording; or [725 ILCS 5/115-10.1]

 

ii)         one of identification of a person made after perceiving the person; or [725 ILCS 5/115-12]

 

B)        an admission by a party-opponent offered against a party and is:

 

i)          the party's own statement in either the party's individual or representative capacity;

 

ii)         a statement of which the party has manifested the party's adoption or belief in its truth;

 

iii)        a statement by a person authorized by the party to make a statement concerning the subject;

 

iv)        a statement by the party's agent or servant concerning a matter within the scope of the agency or employment of the agent or servant, made during the existence of the relationship;

 

v)         a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy; or

 

vi)        a statement by a person, or a person on behalf of an entity, in privity with the party or jointly interested with the party.   

 

3)         "Statement" means:

 

A)        an oral or written assertion; or

 

B)        nonverbal conduct of a person, if it is intended by the person as an assertion.  (Il. Mil. R. Evid. 801)

 

b)         Hearsay Rule

Hearsay is not admissible except as provided by this Manual or by any Act of Congress applicable in trials by court-martial or by Illinois Supreme Court Rules.  (Il. Mil. R. Evid. 802)

 

c)         Exceptions to Hearsay Regardless of Declarant Availability

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

 

1)         Illinois has not adopted the federal Present Sense Impression to the hearsay rule (Federal Rules of Evidence 803(1)).

 

2)         Excited Utterance.  A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

 

3)         A statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including:

 

A)        A statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant's will; or

 

B)        A statement of declarant's then existing state of mind, emotion, sensation or physical condition to prove the state of mind, emotion, sensation or physical condition of another declarant at the time or at any other time when the state of the other declarant is an issue in the action.

 

4)         Statements for Purposes of Medical Diagnosis or Treatment

 

A)        Statements made for the purpose of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source of the symptoms, pain or sensations insofar as reasonably pertinent to diagnosis or treatment but, subject to Section 400.715(a)(2), not including statements made to a healthcare provider consulted solely for the purpose of preparing for litigation or obtaining testimony for trial; or

 

B)        In prosecution for violation of Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50 and 11-1.60 of the Criminal Code of 2012 or of a violation of an identical or closely-related provision of the criminal law of the state where the offense occurred, and assimilated under Code Section 149, statements made by the victim to medical personnel for purposes of medical diagnoses or treatment, including a description of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source of the symptoms, pain or sensation insofar as reasonably pertinent to diagnosis or treatment.

 

5)         Recorded Recollection.  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.  If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.

 

6)         Record of Regularly Conducted Activity  

 

A)        A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation.  This evidence shall be presented by the testimony of the custodian or other qualified witness, or by certification that complies with Section 400.725(b)(2)(K) or any other statute permitting certification in a criminal proceeding in a court of the United States. This exception from the hearsay rule applies unless the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness. The exception does not, in criminal cases, include medical records.  

 

B)        The term "business" as used in this subsection (c)(6) includes the armed forces, a business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.  

 

C)        The following are admissible under this subsection (c)(6) 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 that fact or event:

 

i)          enlistment papers;

 

ii)         physical examination papers;

 

iii)        outline figure and fingerprint cards;

 

iv)        forensic laboratory reports;

 

v)         chain of custody documents;

 

vi)        morning reports and other personnel accountability documents;

 

vii)       service records;

 

viii)      officer and enlisted qualification records;

 

ix)        records of court-martial convictions;

 

x)         logs;

 

xi)        unit personnel diaries;

 

xii)       individual equipment records;

 

xiii)      guard reports;

 

xiv)      daily strength records of prisoners; and

 

xv)       rosters of prisoners.

 

7)         Absence of Entry in Records Kept in Accordance with the Provisions of subsection (c)(6).  Evidence that a matter is not included in the memoranda reports, records or data compilations, in any form, kept in accordance with the provisions of subsection (c)(6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

 

8)         Public Records and Reports 

 

A)        Records, reports, statements or data compilations in any form, of public offices or agencies, setting forth:

 

i)          the activities of the office or agency;

 

ii)         matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, police accident reports and, in criminal cases, medical records and matters observed by police officers and other law enforcement personnel; or

 

iii)        against the government, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 

 

B)        Notwithstanding subsection (c)(8)(A)(ii), the following are admissible under this Section 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 include a duty to know or ascertain through appropriate and trustworthy channels of information that truth of the fact or event and to record that fact or event:  

 

i)          enlistment papers;

 

ii)         physical examination papers;

 

iii)        outline figure and finger print cards;

 

iv)        forensic laboratory reports;

 

v)         chain of custody documents;

 

vi)        morning reports and other personnel accountability documents;

 

vii)       service records;

 

viii)      officer and enlisted qualification records;

 

ix)        records of court-martial convictions;

 

x)         logs;

 

xi)        unit personnel diaries;

 

xii)       individual equipment records;

 

xiii)      guard reports;

 

xiv)      daily strength records of prisoners; and

 

xv)       rosters of prisoners.

 

9)         Records of Vital Statistics.  Facts contained in records or data compilations, in any form, of births, fetal deaths, deaths or marriages, if the report was made to a public office pursuant to requirements of law.

 

10)        Absence of Public Record or Entry.  To prove the absence of a record, report, statement or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Section 400.725(b) or testimony, that diligent search failed to disclose the record, report, statement, data compilation or entry.

 

11)        Records of Religious Organizations.  Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.

 

12)        Marriage, Baptismal and Similar Certificates.  Statements of fact obtained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a time thereafter.

 

13)        Family Records.  Statements of facts concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscription on family portraits, engravings on urns, crypts or tombstones, etc.

 

14)        Records of Documents Affecting an Interest in Property.  The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of the kind in that office.

 

15)        Statements in Documents Affecting an Interest in Property.  A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

 

16)        Statements in Ancient Documents.  Statements in a document in existence 20 years or more, the authenticity of which is established.

 

17)        Market Reports; Commercial Publications. Market quotations, tabulations, directories, lists (including government price lists), or other published compilations generally used and relied upon by the public or by persons in particular occupations.

 

18)        Reputation Concerning Personal or Family History

 

A)        Reputation:

 

i)          among members of the person's family by blood, adoption or marriage;

 

ii)         among the person's associates; or

 

iii)        in the community.

 

B)        The reputation investigation shall concern the person's birth, adoption; marriage; divorce; death; legitimacy; relationship by blood; adoption or marriage; ancestry; or other similar fact of the person's personal or family history.

 

19)        Reputation Concerning Boundaries or General History.  Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

 

20)        Reputation as to Character.  Reputation of a person's character among the person's associates or in the community.

 

21)        Judgment of Previous Conviction.  Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death, dishonorable discharge, or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the government for purposes other than impeachment, judgments against persons other than the accused.  The pendency of an appeal may be shown but does not affect admissibility.  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 Code Section 56 at the time of the conviction applies without regard to whether the case was tried by general, special or summary court-martial.

 

22)        Judgment as to Personal, Family or General History or to Boundaries.  Judgments as proof of matters of personal, family or general history, or boundaries essential to the judgment, if the same would be provable by evidence of reputation.

 

23)        Receipt or Paid Bill.  A receipt of a paid bill as prima facie evidence of the fact of payment and a prima facie evidence that the charge was reasonable.  (Il. Mil. R. Evid. 803)

 

d)         Exceptions to Hearsay When the Declarant is Unavailable

 

1)         Definition. "Unavailability as a Witness" means situations in which the declarant:

 

A)        is exempted by ruling of the military judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

 

B)        persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the military judge to do so; [725 ILCS 5/113-10.2(c) and 725 ILCS 4/115-10.2a(c)]

 

C)        testifies to a lack of memory of the subject matter of the declarant's statement;

 

D)        is unable to be present or to testify at the hearing because of health or then existing physical or mental illness or infirmity;

 

E)        is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or, in the case of a hearsay exception under subsection (d)(3)(B), (C) or (D), the declarant's attendance or testimony by process or other reasonable means; or [725 ILCS 5/115-10.2a(c)]

 

F)         is unavailable within the meaning of Code Section 49(d)(2).

 

2)         A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.

 

3)         Hearsay Exceptions.  The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.

 

A)        Former Testimony.  Testimony given as a witness at another hearing of the same or different proceeding, or in an evidence deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross- or redirect examination.  A record of testimony given before courts-martial, courts of inquiry, military commissions, or other military tribunals, and before proceedings pursuant to or equivalent to those required by Code Section 32 is admissible under this subsection (d)(3)(A) if that record is a verbatim record.  This subsection (d)(3)(A) is subject to the limitations set forth in Code Sections 49 and 50.

 

B)        Statement Under Belief of Impending Death.  In a prosecution for homicide or for any offense resulting in the death of the alleged victim, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death.

 

C)        Statement Against Interest.  A statement that was, at the time of its making, so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the position of the declarant would not have made the statement unless the person believed it to be true.  A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

 

D)        Statement of Personal or Family History

 

i)          A statement concerning the declarant's own:  birth; adoption; marriage; divorce; legitimacy; relationship by blood, adoption or marriage; ancestry; or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or

 

ii)         a statement concerning the matters listed in subsection (d)(3)(D)(i), and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

 

E)        Forfeiture by Wrongdoing.  A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.  (Il. Mil. R. Evid. 804)

 

e)         Hearsay Within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception or exclusion to the hearsay rule.  (Il. Mil. R. Evid. 805)

 

f)         Attacking and Supporting the Declarant's Credibility

 

1)         When a hearsay statement, or a statement described in subsections (a)(2)(B)(iii), (iv) or (v), has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

 

2)         The military judge may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.

 

3)         If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.  (Il. Mil. R. Evid 806)

 

Section 400.725  Authenticating Evidence

 

a)         Authenticating or Identifying Evidence

 

1)         General.  The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

 

2)         Illustrations.  By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Section:

 

A)        Testimony of Witness with Knowledge.  Testimony that a matter is what it is claimed to be.

 

B)        Nonexpert Opinion on Handwriting.  Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

 

C)        Comparison by Trier or Expert Witness.  Comparison by the trier of fact or by expert witnesses, with specimens that have been authenticated.

 

D)        Distinctive Characteristics. Appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances.

 

E)        Voice Identification.  Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

 

F)         Telephone Conversations.  Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular persons or business, if:

 

i)          in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or

 

ii)         in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

 

G)        Public Records or Reports.  Evidence that a writing authorized by law to be recorded or filed, and in fact recorded or filed in a public office, or a purported public record, report, statement or data compilation, in any form, is from the public office where items of this nature are kept.

 

H)        Ancient Documents or Data Compilation.  Evidence that a document or data compilation, in any form:

 

i)          is in such condition as to create no suspicion concerning its authenticity;

 

ii)         was in place where it, if authentic, would likely be; and

 

iii)        has been in existence 20 years or more at the time it is offered.

 

I)         Processor System.  Evidence describing a processor system used to produce a result and showing that the process or system produces an accurate result.

 

J)         Methods Provided by Statute or Rule.  Any method of authentication or identification provided by statute, Illinois Supreme Court rules, or other applicable rules prescribed pursuant to statutory authority.  (Il. Mil. R. Evid. 901)

 

b)         Evidence that Is Self-Authenticating

 

1)         Definitions. Terms used in this subsection (b) have the meanings ascribed in Section 400.730(b).

 

2)         Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for the following:

 

A)        Domestic Public Documents Under Seal. A document bearing a seal, with a signature purporting to be an attestation or execution of that seal, purporting to be that of:

 

i)       the United States;

 

ii)      any state;

 

iii)     any U.S. district, commonwealth, territory or insular possession;

 

iv)     the Panama Canal Zone;

 

v)      the Trust Territory of the Pacific Islands; or

 

vi)     a political subdivision, department, officer or agency of any of these political subdivisions.

 

B)        Domestic Public Documents Not Under Seal.  A document purporting to bear the signature in the official capacity of an officer or employee of any entity described in subsection (b)(2)(A) having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

 

C)        Foreign Public Documents 

 

i)          A document purporting to be executed or attested to in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position of:

 

•           the executing or attesting person; or

 

•           any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution of attestation. 

 

ii)         A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.  If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown:

 

•           order that those documents be treated as presumptively authentic without final certification; or

 

•           permit them to be evidenced by an attested summary with or without final certification.

 

D)        Certified Copies of Public Records.  A copy of an official record or report of entry into those records, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with subsection (b)(2)(A), (B) or (C) or complying with any Act of Congress, rule prescribed by the Supreme Court pursuant to statutory authority, or an applicable regulation prescribed pursuant to statutory authority.

 

E)        Documents or Records of the United States Accompanied by Attesting Certificates.  Documents or records kept under the authority of the United States by any U.S. department, bureau, agency, office or court when attached to or accompanied by an attesting certificate of the custodian of the document or record without further authentication.

 

F)         Official Publications.  Books, pamphlets or other publications purporting to be issued by public authority.

 

G)        Newspapers and Periodicals.  Printed material purporting to be newspapers or periodicals.

 

H)        Trade Inscriptions, Etc.  Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control, content, ingredients or origin.

 

I)         Acknowledged Documents.  Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

 

J)         Commercial Paper and Related Documents.  Commercial paper, signatures on those papers, and documents relating to those papers, to the extent provided by general commercial law.

 

K)        Presumptions Under Acts of Congress and Regulations.  Any signature, document or other matter declared by Act of Congress or by applicable regulation prescribed pursuant to statutory authority to be presumptively, or prima facie, genuine or authentic.

 

L)        Certified Domestic Records of Regularly Conducted Activity 

The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Section 400.720(c)(6) if accompanied by a written certification of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record was:

 

i)          made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters;

 

ii)         kept in the course of the regularly conducted activity; and

 

iii)        made by the regularly conducted activity as a regular practice.  The word "certification" as used in this subsection (b)(2)(L) means, with respect to a domestic record, a written declaration under oath subject to the penalty of perjury and, with respect to a record maintained or located in a foreign country, a written declaration signed in a country that, if falsely made, would subject the maker to criminal penalty under the laws of that country.  A party intending to offer a record into evidence under this subsection (b)(2)(L) must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. (Il. Mil. R. Evid. 902)

 

Section 400.730  Documentary Evidence

 

a)         Subscribing Witnesses' Testimony.  The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.  (Il. Mil. R. Evid. 903)

 

b)         Contents of Writings, Recordings and Photographs

For purposes of this Section, the following definitions apply:

 

1)         "Duplicate" means a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques that accurately reproduce the original.  (Il. Mil. R. Evid. 1001; see also Il. Mil. R. Evid. 902)

 

2)         "Original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.  An "original" of a photograph includes the negative or any print. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

 

3)         "Photographs" means still photographs, X-ray films, video tapes, and motion pictures and similar or other products or processes that produce a recorded image.

 

4)         "Writings" and "Recordings" means letters, words, sounds or numbers, or their equivalent, set down by handwriting, typewriting, printing, photocopying, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (Il. Mil. R. Evid. 1001)

 

c)         Requirement of the Original

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in this Manual, Illinois Statute or Act of Congress.  (Il. Mil. R. Evid. 1002)

 

d)         Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless:

 

1)         a genuine question is raised as to the authenticity of the original; or

 

2)         in the circumstances it would be unfair to admit the duplicate in lieu of the original.  (Il. Mil. R. Evid. 1003)

 

e)         Admissibility of Other Evidence of Content

The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if:

 

1)         Originals Lost or Destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; 

 

2)         Original Not Obtainable.  No original can be obtained by any available judicial process or procedure; 

 

3)         Original in Possession of Opponent.  At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing; or

 

4)         Collateral Matters.  The writing, recording or photograph is not closely related to a controlling issue.  (Il. Mil. R. Evid. 1004)

 

f)         Copies of Public Records to Prove Content

 

1)         The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct or attested to in accordance with Section 400.725(b) or testified to be correct by a witness who has compared it with the original.

 

2)         If a copy that complies with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be given.  (Il. Mil. R. Evid. 1005)

 

g)         Summaries to Prove Content

 

1)         The contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation.

 

2)         The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place.  The military judge may order that they be produced in court.  (Il. Mil. R. Evid. 1006)

 

h)         Testimony or Statement of a Party to Prove Content

Contents of writings, recordings or photographs may be proved by the testimony or deposition of the party against whom offered or by the party's written admission, without accounting for the nonproduction of the original.  (Il. Mil. R. Evid. 1007)

 

i)          Functions of the Military Judge

 

1)         When the admissibility of other evidence of contents of writings, recordings or photographs under this Section depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the military judge to determine in accordance with the provisions of Section 400.600(e).

 

2)         As in the case of other issues of fact, when an issue is raised, the issue for the trier of fact to determine is:

 

A)        whether the asserted writing ever existed;

 

B)        whether another writing, recording or photograph produced at trial is the original; or

 

C)        whether other evidence of contents correctly reflects the contents. (Il. Mil. R. Evid. 1008)

 

Section 400.735  Applicability of This Subpart

 

a)         Except as otherwise provided in this Manual, this Subpart applies generally to:

 

1)         all courts-martial, including summary court-martial;

 

2)         Code Section 39 hearings;

 

3)         limited fact-finding proceedings ordered on review;

 

4)         proceedings in revision; and

 

5)         contempt proceedings other than contempt proceedings in which the judge may act summarily.

 

b)         The application of this Subpart may be relaxed in presentencing proceedings.  They do not apply to a military judge's preliminary questions of fact governing admissibility, pretrial investigations under Code Section 32, and proceedings for vacation of suspension of a sentence under Code Section 72, search authorizations, pretrial restraint, pretrial confinement, or other pretrial motions hearing.

 

c)         The rules on privilege apply at all stages of a case or proceeding. (Il. Mil. R. Evid. 1101)

 

Section 400.800  Unlawfully Influencing Action of the Court

 

a)         No authority convening a general, special or summary court-martial, nor any other commanding officer, or officer serving on the staff of the commanding officer, may censure, reprimand or admonish the court or any member, the military judge, or counsel of the court, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings.  No person subject to the Code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member of these bodies, in reaching the findings or sentence in any case, or the action of any convening, approving or reviewing authority with respect to their judicial acts.  This subsection (a) shall not apply with respect to:

 

1)         general instructional or informational courses in military justice if those courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or

 

2)         statements and instructions given in open court by the military judge, summary court-martial officer, 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 SMF is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the SMF, or in determining whether a member of the SMF should be retained on active status, no person subject to the Code may, in preparing any such report:

 

1)         consider or evaluate the performance of duty of any SMF member as a member of a court-martial or witness in a court-martial; or

 

2)         give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial. (Code Section 37)

 

c)         Code Section 37 does not extend to protection from prosecution of crimes such as perjury or false official statement.

 

Section 400.805  Duties of Trial Counsel and Defense Counsel

 

a)         Trial Counsel.  The trial counsel of a general or special court-martial shall be a member in good standing of the State bar and shall prosecute in the name of the State of Illinois, and shall, under the direction of the court, prepare the record of the proceedings.

 

b)         Counsel for the Accused

 

1)         The accused has the right to be represented in defense before a general or special court-martial or at an investigation under Code Section 32 as provided in this subsection (b).

 

2)         The accused may be represented by civilian counsel at the provision and expense of the accused.

 

3)         The accused may be represented by:

 

A)        military counsel detailed under Code Section 27; or

 

B)        military counsel of the accused's own selection if that counsel is reasonably available as determined under subsection (b)(9).

 

4)         If the accused is represented by civilian counsel, military counsel detailed or selected under subsection (b)(3) shall act as associate counsel unless excused at the request of the accused.

 

5)         Except as provided under subsection (b)(6), if the accused is represented by military counsel of his or her own selection under subsection (b)(3)(B), any military counsel detailed under subsection (b)(3)(A) shall be excused.

 

6)         The accused is not entitled to be represented by more than one military counsel.  However, the convening authority, in his or her sole discretion, may:

 

A)        detail additional military counsel as assistant defense counsel; and

 

B)        if the accused is represented by military counsel of the accused's own selection under subsection (b)(3)(B), approve a request from the accused that military counsel detailed under subsection (b)(3)(A) act as associate defense counsel. (Code Section 38(b)(1) through (6))

 

7)         Under the supervision of the defense counsel, an assistant defense counsel may perform any act or duty that a defense counsel may perform under the Code or this Manual.

 

8)         Defense counsel may be excused only with the express consent of the accused or by the military judge upon application for withdrawal by the defense counsel for good cause shown, unless defense counsel faces immediate ethical or moral dilemma in ongoing representation.

 

9)         The senior judge advocate of the same force of which the accused is a member shall determine whether the military counsel selected by an accused is reasonably available. (Code Section 38(b)(7))

 

c)         In any court-martial proceeding resulting in a conviction, the defense counsel may:

 

1)         forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered on behalf of the accused on review, including any objection to the contents of the record that counsel considers appropriate;

 

2)         assist the accused in the submission of any matter under Code Section 60; and

 

3)         take other action authorized by the Code.  (Code Section 38(c))

 

Section 400.810  Sessions

 

a)         Call to Session

 

1)         At any time after the service of charges that have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to Code Section 35, call the court into session without the presence of the members for the purpose of:

 

A)        hearing and determining motions raising defenses or objections that are capable of determination without trial of the issues raised by a plea of not guilty;

 

B)        hearing and ruling upon any matter that may be ruled upon by the military judge under the Code, whether or not the matter is appropriate for later consideration or decision by the members of the court;

 

C)        holding the arraignment and receiving the pleas of the accused; and

 

D)        performing any other procedural function that does not require the presence of the members of the court under the Code.

 

2)         These proceedings 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 court members and without regard to Code Section 29. (Code Section 39(a))

 

b)         Assembly of the Court-Martial.  The military judge shall announce verbally, on the record, that the court-martial has assembled and shall constitute the court-martial for hearing the case.

 

c)         Proceedings.  A court-martial trial conducted under the Code will proceed with respect to findings as provided in RCM 901 through 924.

 

d)         Deliberation and Voting.  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 the military judge. (Code Section 39(b))

 

e)         Procedures.  The presiding military judge may, in his or her discretion, issue any protocol, procedure or guidance that is reasonably calculated to more efficiently, practically or thoroughly resolve the pending court-martial. Those procedures shall remain in place until post-trial motions have concluded or until the military judge withdraws them, whichever comes first.  

 

Section 400.815  Continuances

 

a)         The military judge may issue, in writing or by oral order, any continuance as necessary, and may do so without conducting a formal motions hearing so long as all parties are promptly notified.

 

b)         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.  (Code Section 40)

 

Section 400.820  Challenges

 

a)         Challenges in General

 

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 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 Code Section 16, all parties shall, notwithstanding Code Section 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)         Number of Challenges

 

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 Code Section 16, the parties shall, notwithstanding Code Section 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 those 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.  (Code Section 41)

 

Section 400.825  Oaths

 

a)         Oath by Trial Participants. Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully.  The form of the oath or affirmation is prescribed in subsection (f). The time and place of the taking of the oath or affirmation, the manner of recording the oath or affirmation, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in statute or this Manual.  These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty (e.g., a court reporter or notary public). If an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.

 

b)         Oath by Witnesses.  Each witness before a court-martial shall be examined under oath or affirmation. (Code Section 42)

 

c)         Administrators of Oaths. The following persons may administer oaths for the purposes of military justice:

 

1)         All judge advocates.

 

2)         All summary courts-martial.

 

3)         All adjutants, assistant adjutants acting adjutants, and personnel adjutants.

 

4)         The president, military judge and trial counsel for all general and special courts-martial.

 

5)         The president and the counsel for the court of any court of inquiry (see Section 400.1300).

 

6)         All officers designated to take a deposition.

 

7)         All persons detailed to conduct an investigation.

 

8)         All other persons designated by U.S. Army regulation 27-55 (notary services) or by 10 USC 1041a (authority to act as a notary). (Code Section 136(a) and (b))

 

d)         Prescription of Oaths

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.

 

1)         Oath for Military Judge.  When the military judge is not previously sworn, the trial counsel will administer the following oath to the military judge:

 

"Do you (swear) (affirm) that you will faithfully and impartially perform, according to your conscience and the laws applicable to trial by court-martial, all the duties incumbent upon you as military judge of this court-martial (so help you God)?"

 

2)         Oath for Members.  The following oath, as appropriate, will be administered to the members by the trial counsel:

 

"Do you (swear) (affirm) that you will answer truthfully the questions concerning whether you should serve as a member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws applicable to trial by court-martial, the case of the accused now before this court; and that you will not disclose or discover the vote or opinion of any particular member of the court (upon a challenge or) upon the findings or sentence unless required to do so in due course of law (so help you God)?"

 

3)         Oaths for Counsel.  When counsel for either side, including any associate or assistant, is not previously sworn, the following oath, as appropriate, will be administered by the military judge:

 

"Do you (swear) (affirm) that you will faithfully perform all the duties of (trial) (assistant trial) (defense) (associate defense) (assistant defense) counsel in the case now in hearing (so help you God)?"

 

4)         Oath for Reporter.  The trial counsel will administer the following oath to every reporter of a court-martial who has not been previously sworn:

 

"Do you (swear) (affirm) that you will faithfully perform the duties of reporter to this court-martial (so help you God)?"

 

5)         Oath for Interpreter.  The trial counsel or the summary court-martial shall administer the following oath to every interpreter in the trial of any case before a court-martial:  

 

"Do you (swear) (affirm) that, in the case now in hearing, you will interpret truly the testimony you are called upon to interpret (so help you God)?"

 

6)         Oath for Witnesses.  The trial counsel or the summary court-martial will administer the following oath to each witness before the witness first testifies in a case:  

 

"Do you (swear) (affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth (so help you God)?"

 

Section 400.830  Statute of Limitations

 

a)         Except as otherwise provided in this Section, a person charged with any offense is not liable to be tried by court-martial or punished under Code Section 15 if the offense was committed more than 3 years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under Code Section 15.

 

b)         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.

 

c)         The following periods shall be excluded in computing the period of limitation prescribed in this Section:

 

1)         Periods in which the accused was absent from territory in which the State has the authority to apprehend the accused;

 

2)         Periods when the accused was in the custody of civil authorities; or

 

3)         Periods when the accused was in the hands of the enemy.

 

d)         Wartime suspension

 

1)         When the United States is at war or armed conflict authorized by law, the running of any statute of limitations is suspended for any offense under the Code:

 

A)        involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not;

 

B)        committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States or any state; or

 

C)        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 that 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.

 

2)         The suspension remains effective until 2 years after the termination of hostilities or armed conflict as proclaimed by the President or by a joint resolution of Congress.  (Code Section 43(a) through (d))

 

Section 400.835  Former Jeopardy

 

a)         No person may, without his or her 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 Section until the finding of guilty has become final after review of the case has been fully completed.

 

c)         A proceeding that, 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 Section.  (Code Section 44)

 

Section 400.840  Arraignment and Pleas of the Accused

 

a)         Arraignment shall be conducted in a court-martial session and shall consist of reading the charges and specifications to the accused and calling on the accused to plead. The accused may waive the reading.

 

b)         Persons subject to the Code are presumed innocent and cannot be found guilty without either:

 

1)         being found guilty at courts-martial; or

 

2)         knowingly and voluntarily entering an open or negotiated plea of guilty.

 

c)         Prior to accepting a plea of guilty, the military judge shall comply with Illinois Supreme Court Rule 402.

 

d)         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 the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty. (Code Section 45(a))

 

e)         With respect to any 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 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 that event, the proceedings shall continue as though the accused had pleaded not guilty. (Code Section 45(b))

 

Section 400.845  Opportunity to Obtain Witnesses and Other Evidence

 

a)         Trial counsel shall assist defense counsel and issue subpoenas or other process as reasonably requested by defense counsel.  Trial counsel shall not withhold evidence from defense counsel.

 

b)         The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law.  Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the armed forces of the United States, but may not be contrary to or inconsistent with the Code.  Process shall run to any part of the United States, or the U.S. territories, commonwealths and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.  (Code Section 46)

 

Section 400.850  Refusal to Appear or Testify

 

a)         The military judge may issue such warrants or body attachments for the arrest of any person refusing to appear pursuant to Code Section 47, in addition to any other relief deemed just and appropriate under Illinois law.

 

b)         The military court may punish in the same manner as a criminal court of the State any person not subject to the Code who:

 

1)         has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry, or before any military or civil officer designated to take a deposition to be read in evidence before such a court;

 

2)         has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the State; and

 

3)         willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence that person may have been legally subpoenaed to produce.

 

c)         The fees and mileage of witnesses shall be advanced or paid by the State. (Code Section 47)

 

Section 400.855  Contempt

 

a)         A military judge may punish for contempt any person who refuses a court order, is disrespectful to the court, or who uses any menacing word, sign or gesture in its presence, or who disturbs its proceedings by any riot or disorder.

 

b)         A person subject to the Code may be punished for contempt by confinement not to exceed 30 days or a fine up to $500, or both.

 

c)         A person not subject to the Code may be punished for contempt by a military court in the same manner as a criminal court of the State. (Code Section 48)

 

d)         Any appeal shall be to the Fourth District of the Illinois Appellate Court.

 

Section 400.860  Depositions

 

a)         Trial and defense counsel should be mindful of the accused's constitutional rights and shall not seek deposition except as a last resort when other methods to secure attendance of the witness has failed.

 

b)         At any time after charges have been signed as provided in Code Section 30, any party may take oral or written depositions unless the military judge hearing the case or, if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause.

 

c)         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.

 

d)         Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the State or by the laws of the place where the deposition is taken to administer oaths.

 

e)         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, digital image or file, or similar material, may be admitted in evidence before any military court if it appears that:

 

1)         the witness resides or is beyond the state in which the court is ordered to sit, or beyond 100 miles from the place of trial or hearing;

 

2)         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 the trial or hearing; or

 

3)         the present whereabouts of the witness is unknown.  (Code Section 49)

 

Section 400.865  Admissibility of Records of Courts of Inquiry

 

a)         In any case 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 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 that evidence.

 

b)         The testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.

 

c)         The testimony may also be read in evidence before a court of inquiry.  (Code Section 50)

 

Section 400.870  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 shall instruct the members of the court as to the defense of lack of mental responsibility under Code Section 50a and charge them to find the accused guilty, not guilty or 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 guilty, not guilty or not guilty only by reason of lack of mental responsibility.

 

e)         Notwithstanding the provisions of Code Section 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.  (Code Section 50a)

 

Section 400.875  Voting By the Court-Martial

 

a)         Voting and Ruling

 

1)         Voting by members of a general or special court-martial on the findings and on the sentence 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.

 

2)         The 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 is final and constitutes the ruling of the court.  However, the military judge may change the ruling at any time during the trial.  Unless the ruling is final, if any member objects to the ruling, the court shall be cleared and closed and the question decided by a voice vote as provided in Code Section 52, beginning with the junior in rank.

 

3)         Before a vote is taken on the findings, the 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 that:

 

A)        the accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond reasonable doubt;

 

B)        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 the accused must be acquitted;

 

C)        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

 

D)        the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the State.

 

4)         Subsections (a)(1), (2) and (3) 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, make special findings as provided in RCM 918(b).  If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear in that document.  (Code Section 51) The military judge may give any instructions necessary to clarify the members' questions after the conclusions of evidence, or to decline to answer any question in the event that response implicates inadmissible evidence.

 

5)         Included Offenses.  Members shall not vote on a lesser included offense unless a finding of not guilty of the offense charged has been reached.  If a finding of not guilty of an offense charged has been reached, the members shall vote on each included offense on which they have been instructed, in order of severity beginning with the most severe.  The members shall continue the vote on each included offense on which they have been instructed until a finding of guilty results or findings of not guilty have been reached as to each offense.

 

b)         Procedure for Voting

 

1)         Order.  Each specification shall be voted on separately before the corresponding charge.  The order of voting on several specifications under a charge or on several charges shall be determined by the president unless a majority of the members object.

 

2)         Counting Votes.  The junior member shall collect the ballots and count the votes.  The president shall check the count and inform the other members of the result.

 

c)         Number of Votes Required

 

1)         No person may be convicted of an offense except as provided in Code Section 45(b) or by the concurrence of ⅔ of the members present at the time the vote is taken.

 

2)         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 that indicates 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 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. (Code Section 52)

 

3)         Acquittal.  If fewer than ⅔ of the members present vote for a finding of guilty, a finding of not guilty has resulted as to the charge or specification on which the vote was taken.

 

d)         Court to Announce Action  

 

1)         A court-martial shall announce its findings and sentence to the parties as soon as determined. (Code Section 53)

 

2)         The military judge may take such actions as it deems reasonably necessary to secure the courtroom and safety of persons within the courtroom prior to, and after, the announcement of court-martial findings.

 

Section 400.880  Withdrawal of Guilty Plea

 

An accused may withdraw a plea of guilty as provided in RCM 910(h)(1) and (2).

 

Section 400.900  Presentencing Procedure

 

In a court-martial trial conducted under the Code resulting in a finding of guilt, the court shall follow the presentencing procedures provided in RCM 1001 through 1003 and 1005 through 1011 (RCM Chapter X (Sentencing, Rule)), except that neither death nor confinement in excess of 10 years may be adjudged.

 

Section 400.905  Sentencing

 

a)         Cruel and Unusual Punishment Prohibited

 

1)         Persons subject to the Code will be afforded all constitutional protections against cruel and unusual punishment, in accordance with U.S. Supreme Court and Illinois Supreme Court case law.

 

2)         Punishment by flogging, or by branding, marking or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to the Code.  The use of irons, single or double, except for the purpose of safe custody, is prohibited.  (Code Section 55)

 

b)         Maximum Limits

 

1)         The punishment a court-martial may direct for an offense may not exceed the limits prescribed by the Code, but in no instance may a sentence exceed more than 10 years for a military offense, nor shall a sentence of death be adjudged.  A conviction by general court-martial of any military offense for which an accused may receive a sentence of confinement for more than one year is a felony offense.  All other military offenses are misdemeanors.

 

2)         The limits of punishment for violations of the punitive articles described in Subpart J shall be equal to, or the lesser of, the sentences prescribed by the MCM. In no instance shall any punishment exceed that authorized by the Code.  (Code Section 56)

 

c)         Effective Dates of Sentences

 

1)         Forfeiture of Pay or Allowances.  Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture may apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority.  No forfeiture may extend to any pay or allowances accrued before that date.

 

2)         Confinement.  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.

 

3)         All other sentences of courts-martial are effective on the date ordered executed, subject to Code Section 71 (see Section 400.1075).  (Code Section 57)

 

d)         Reconsideration of Sentence

 

1)         Reconsideration.  A sentence may be reconsidered at any time before it is announced in open session of the court.

 

2)         The procedures detailed in RCM 1009 shall apply.

 

e)         Report of Result of Trial; Post-Trial Restraint

 

1)         After final adjournment of the court-martial, trial counsel shall promptly notify the accused's immediate commander, the convening authority or designee and, if appropriate, the officer in charge of the confinement facility of the findings and the sentence.

 

2)         Confinement

 

A)        General.  An accused may be placed in post-trial confinement if the sentence adjudged by the court-martial includes confinement.

 

B)        Who May Order.  Unless limited by superior authority, a commander of the accused may order the accused into post-trial confinement when post-trial confinement is authorized under this subsection (e)(2).  A commander authorized to order post-trial confinement may delegate this authority to the trial counsel.

 

f)         Deferment of Sentences

 

1)         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 that person's jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may, in that person's 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 person who granted it or, if the accused is no longer under that person's jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned.

 

2)         Process

 

A)        In any case in which a court-martial sentences an accused referred to in subsection (f)(2)(B) to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the SMF by a state, the United States, or a foreign country.

 

B)        Subsection (f)(2)(A) applies to a person subject to the Code who:

 

i)          while in the custody of a state, the United States or a foreign country is temporarily returned by that state, the United States or foreign country to the SMF for trial by court-martial; and

 

ii)         after the court-martial, is returned to that state, the United States or foreign country under the authority of a mutual agreement or treaty, as the case may be.

 

3)         In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under Code Section 57a(a) is pending, the Adjutant General may defer further service of the sentence to confinement while that review is pending.  (Code Section 57a)

 

g)         Execution of Confinement

 

1)         Confinement for one year or more.  If a person subject to the Code and this Manual is convicted at court-martial for an offense punishable by more than one year confinement, and is sentenced to confinement of one year or more, at the conclusion of post-trial motions, that person will be transported to, and incarcerated with, the Illinois Department of Corrections. 

 

2)         Confinement for less than one year.  If a person subject to the Code and this Manual is convicted at court-martial for an offense punishable by less than one year confinement, and is sentenced to confinement, that person will be transported to, and incarcerated in, the county jail.

 

3)         Notwithstanding subsections (g)(1) and (2), the military judge, in his or her discretion, may always order confinement at any civilian county jail, department of corrections facility, or military confinement facility authorized under the Code that he or she deems reasonable and appropriate. The military judge should consider the interests of national security, State security, good order and discipline, and other applicable federal or State laws and this Manual.  

 

4)         A sentence of confinement adjudged by a court-martial, 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 authorized by the Code.  Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement.

 

5)         The omission of hard labor as a sentence authorized under the Code does not deprive the State confinement facility from employing it, if it otherwise is within the authority of that facility to do so.

 

6)         No place of confinement may require payment of any fee or charge for receiving or confining a person, except as otherwise provided by law.  (Code Section 58)

 

h)         Sentences:  Reduction in Enlisted Grade Upon Approval

 

1)         A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, reduces that member to pay grade E-1, effective on the date of that approval, if the sentence includes:

 

A)        a dishonorable or bad-conduct discharge; or

 

B)        confinement.  (Code Section 58a(a))

 

2)         If the sentence of a member who is reduced in pay grade under subsection (h)(1) is set aside or disapproved, or, as finally approved, does not include any punishment named in subsection (h)(1), the rights and privileges of which the person was deprived because of that reduction shall be restored, including pay and allowances.  (Code Section 58a(b))

 

i)          Sentences:  Forfeiture of Pay and Allowances During Confinement

 

1)         General

 

A)        A court-martial sentence described in subsection (i)(1)(B) 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 subsection (i) shall take effect on the date determined under Code Section 57(a) and may be deferred as provided by 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 the period of confinement or parole and, in the case of a special court-martial, shall be ⅔ of all pay due the member during that period.

 

B)        A sentence covered by this subsection (i) is any sentence that includes:

 

i)          confinement for more than 6 months; or

 

ii)         confinement for 6 months or less and a dishonorable or bad-conduct discharge or dismissal.

 

2)         In a case involving an accused who has dependents, the convening authority or other person acting under Code Section 60 may waive any or all of the forfeitures of pay and allowances required by subsection (i)(1) for a period not to exceed 6 months.  Any amount of pay or allowances subject to the waiver will be paid, as the convening authority or other person taking action directs, to the dependents of the accused.

 

3)         If the sentence of a member who forfeits pay and allowances under subsection (i)(1) is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (i)(1)(B), the member shall be paid the pay and allowances that he or she would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.  (Code Section 58b)

 

Section 400.1000  Post-Trial Procedure and Reviews

 

a)         Appellate procedures for all convictions under the Code and this Manual shall be in accordance with those of the Illinois Appellate Court, Fourth District.

 

b)         In each general and special court-martial, prior to adjournment, the military judge shall ensure that the defense counsel has informed the accused orally and in writing of:

 

1)         The right to submit matters to the convening authority to consider before taking action;

 

2)         The right to appellate review, as applicable, and the effect of waiver or withdrawal of that right; and

 

3)         The right to the advice and assistance of counsel in the exercise of the rights described in subsections (b)(1) and (2) or any decision to waive them.  The written advice to the accused concerning post-trial and appellate rights shall be signed by the accused and the defense counsel and inserted in the record of trial as an appellate exhibit.

 

Section 400.1005  Error of Law; Lesser Included Offenses

 

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. (Code Section 59)

 

c)         Any challenges to an error of law must be raised in a timely post-trial motion.  Constitutional challenges may be raised at any time, including on appeal.

 

Section 400.1010  Preparation of the Record of Trial; Authentication; Service; Loss; Correction

 

In every court-martial trial conducted under the Code, the record of trial shall be prepared, authenticated and served substantially in accordance with RCMs 1103 through 1104.  Any reference in those RCMs to the "Court of Criminal Appeals" shall instead refer to the "Illinois Appellate Court".

 

Section 400.1015  Recommendation of the State Judge Advocate

 

a)         Before acting on a finding of guilt on any general or special court-martial in which there is a finding of guilt, the convening authority must obtain the written concurrence of the State Judge Advocate or designee by means of legal review.  The convening authority will refer the authenticated record of trial to the State Judge Advocate who shall use it in preparation of the review.

 

b)         Content.  The legal 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;

 

C)        The sentence was within the limits prescribed as a matter of law.

 

2)         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.

 

c)         The State Judge Advocate's recommendation and a copy of the authenticated record of trial will be served on the accused and his or her defense counsel who may submit matters to the convening authority as provided in Section 400.1020.

 

d)         Disqualification.  No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in any case may later act as State Judge Advocate or designee to any reviewing or convening authority in the same case.

 

Section 400.1020  Matters Submitted by the Accused

 

a)         General.  After a sentence is adjudged in any court-martial under the Code, the accused may submit matters to the convening authority in accordance with this Section.

 

b)         Matters That May Be Submitted

 

1)         The accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority's decision whether to disapprove any findings of guilty or to approve the sentence.  Submissions must be in writing.

 

2)         Submissions may include allegations of errors affecting the legality of the proceedings, portions or summaries of the record and copies of documentary evidence offered or introduced at trial, matters in mitigation not available at trial, and clemency recommendations from any person.

 

3)         The accused may waive his or her right to make a submission to the convening authority, provided the waiver is in writing.  Once accepted by the convening authority, waiver may not be revoked.

 

4)         Failure to object to matters in the State Judge Advocate's recommendation waives the right to object to that matter.

 

c)         Time Periods

 

1)         The accused may submit matters under this Section within the later of 30 days after the accused has been given an authenticated copy of the record of trial or, if applicable, the recommendation of a State Judge Advocate, or an addendum to the recommendation containing a new matter is served on the accused.

 

2)         If, within the 30-day period, the accused shows that additional time is required to submit the matters, the convening authority or other person taking action, for good cause shown, may extend the period to submit matters for an additional 20 days.  (Code Section 60(b)(1) and (2))

 

Section 400.1025  State Judge Advocate's Addendum

 

a)         The State Judge Advocate or designee may, by addendum, supplement the recommendation after the accused and counsel have been served with the recommendation and given an opportunity to submit matters and comment.

 

b)         If the addendum introduces new matter after the accused and counsel have examined the recommendation, the accused and counsel must be served with the addendum containing new matter and given 30 days from service of the addendum to submit comments.

 

Section 400.1030  Action by the Convening Authority

 

a)         Who May Take Action.  The convening authority shall take action on the sentence and, in the discretion of the convening authority, the findings, unless it is impractical.  If it is impracticable for the convening authority to act, the convening authority shall, in accordance with regulations promulgated by the Adjutant General, forward the case to an officer exercising general court-martial jurisdiction who may take action. (See NGIL Reg. 27-10/NGIL-ANGI 51-202, paragraph 9-1(b)(1).)

 

b)         Discretion to Modify.  The authority to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority or other officer authorized to take action.

 

c)         Action on the Sentence.  Action may be taken only after consideration of any matters submitted by the accused, or after the time to submit them has expired, whichever is earlier.  In his or her sole discretion, the convening authority or other officer authorized to take action may approve, disapprove, commute or suspend the sentence in whole or in part.  The action may mitigate the sentence and change punishment to one of a different nature as long as the severity of the punishment is not increased.  The action may not increase the punishment imposed by the court-martial.  The action shall explicitly state approval or disapproval of the adjudged sentence.

 

d)         Action on the Findings.  The convening authority or other officer acting on the sentence is not required to take action on the findings.  However, that person, in his or her sole discretion, may:

 

1)         Dismiss any charge or specification by setting aside a finding of guilty; or

 

2)         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. (Code Section 60(c))

 

e)         Revision and Rehearing.  The convening authority or other person taking action, in the person's sole discretion, may order a proceeding in revision or rehearing.

 

1)         Rehearing.  The convening authority or other person taking action may, in his or her sole discretion, order a rehearing if that person disapproves the findings and sentence, and states the reasons of disapproval of the findings.  If that person disapproves the findings and sentence and does not order a rehearing, he or she shall dismiss the charges.  A rehearing as to findings shall not be ordered if there is a lack of sufficient evidence in the record to support the findings.  A rehearing on the sentence may be ordered if the convening authority or other person taking action disapproves the sentence.  Rehearing will be in accordance with this Manual.

 

2)         Revision.  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 that 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 the charge that sufficiently alleges a violation of some Section of the Code; or

 

C)        Increases the severity of the sentence.  (Code Section 60(e))

 

Section 400.1035  General and Special Courts-Martial in Which There is a Finding of Guilty; Review by Senior Force Judge Advocate; Action by the Adjutant General

 

a)         In addition to the judge advocate's recommendation under Code Section 60, in a general and special court-martial in which there is a finding of guilt, the State Judge Advocate or designee shall review the case.  No person may review the case who has acted as an accuser, member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in that case.  The 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;

 

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 Adjutant General if:

 

1)         The judge advocate who reviewed the case recommends corrective action;

 

2)         The sentence approved by the convening authority under Code Section 60 extends to dismissal, bad-conduct discharge, dishonorable discharge, or confinement for more than 6 months; or

 

3)         The action is required under regulations prescribed by the Adjutant General.

 

c)         The Adjutant General may:

 

1)         Disapprove or approve the findings or sentence, in whole or in part;

 

2)         Remit, commute or suspend the sentence in whole or in part;

 

3)         Except when evidence is insufficient at the trial to support the findings, order a rehearing on the findings, sentence or on both; or

 

4)         Dismiss the charges.

 

d)         If the Adjutant General orders a rehearing but the convening authority finds a hearing impractical, the convening authority shall dismiss the charges.

 

e)         If, in the State Judge Advocate's opinion, corrective action is required as a matter of law, and if the Adjutant General does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of the trial and the action shall be sent to the Governor for review and action as deemed appropriate.

 

f)         The State Judge Advocate, or designee, may review any case in which there has been a finding of not guilty of all charges and specifications.  However, the State Judge Advocate may not review the case if he or she has acted as an accuser, member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in that case.  The review shall be limited to questions of subject matter jurisdiction.

 

g)         The records of trial and related documents in each case reviewed under subsection (f) shall be sent for action to the Adjutant General who may:

 

1)         Void the court-martial ab initio when subject matter jurisdiction is found lacking, with or without prejudice to the government, as the Adjutant General deems appropriate;

 

2)         Return the record of trial and related documents to the State Judge Advocate for appeal by the government as provided by law. (Code Section 64)

 

Section 400.1040  Withdrawal of Appeal

 

a)         The accused has a right to appeal.  This right to appeal is permissive and not automatic.  There are no exceptions to the right to appeal. 

 

b)         In each case subject to appellate review under the Code, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to appeal. The withdrawal shall be signed by both the accused and his or her defense counsel and must be filed in accordance with appellate procedures as provided by Article VI of the Illinois Supreme Court Rules (Appeals in Criminal Cases, Post-Conviction Cases and Juvenile Court Proceedings).

 

c)         The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by Supreme Court Rules, Article VI.  The withdrawal must be in writing. (Code Section 61)

 

Section 400.1045  Appeal by the State

 

a)         General

 

1)         In a trial by court-martial in which a punitive discharge may be adjudged, the State may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial, so long as it is not made in reconsideration:

 

A)        An order or ruling of the military judge that terminates the proceedings with respect to a charge or specification;

 

B)        An order or ruling that excludes evidence that is substantial proof of a fact material in the proceeding;

 

C)        An order or ruling that directs the disclosure of classified information;

 

D)        An order or ruling that imposes sanctions for nondisclosure of classified information;

 

E)        A refusal of the military judge to issue a protective order sought by the State to prevent the disclosure of classified information; or

 

F)         A refusal by the military judge to enforce an order described in subsection (a)(1)(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 after the order or ruling.  The 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 that 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 as provided by law.

 

b)         An appeal under this Section shall be forwarded to the court prescribed in Code Section 67a.  In ruling on an appeal under Code Section 62, that court may act only with respect to matters of law.

 

c)         Any period of delay resulting from an appeal under Code Section 62 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. (Code Section 62)

 

d)         Appellate procedures will be governed by the Fourth District of the Illinois Appellate Court.

 

Section 400.1050  Rehearing

 

a)         Each rehearing under the Code shall take place before a court-martial composed of members not members of the court-martial that first heard the case.

 

b)         Upon a rehearing, the accused may not be tried for any offense of which he or she 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.

 

c)         If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a 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.  (Code Section 63)

 

Section 400.1055  Procedures for Rehearing, New Trials and Other Trials

 

a)         General

 

1)         Definition. "Other trial" means another trial of a case in which the original proceedings were declared invalid because of lack of jurisdiction or failure of a charge to state an offense.

 

2)         Rehearing in Full and New or Other Trials.  In rehearings that require findings on all charges and specifications referred to a court-martial and in new or other trials, the procedure shall be the same as in an original trial except as otherwise provided in this Section.

 

3)         Rehearing on Sentence Only.  In a rehearing on sentence only, the procedure shall be the same as in an original trial, except that the portion of the procedure that ordinarily occurs after challenges, and through the findings, is omitted, and except as otherwise provided in this Section.

 

b)         Contents of the Record.  The contents of the record of the original trial consisting of evidence properly admitted on the merits relating to each offense of which the accused stands convicted but not sentenced may be established by any party whether or not testimony so read is otherwise admissible under Section 400.720(d) and whether or not it was given through an interpreter.

 

c)         Plea.  The accused at a rehearing only on sentence may not withdraw any plea of guilty upon which findings of guilty are based.  However, if that plea is found to be improvident, the rehearing shall be suspended and the matter reported to the authority ordering the rehearing.

 

d)         Combined Rehearings.  When a rehearing on sentence is combined with a trial on the merits of one or more specifications referred to the court-martial, whether or not those specifications are being tried for the first time or reheard, the trial will proceed first on the merits, without reference to the offenses being reheard on sentence only.  After findings on the merits are announced, the members, if any, shall be advised of the offenses on which the rehearing on sentence has been directed.  Additional challenges for cause may be permitted, and the sentencing procedure shall be the same as at an original trial, except as otherwise provided in this Section.  A single sentence shall be adjudged for all offenses.

 

e)         Composition

 

1)         Members.  No member of the court-martial that previously heard the case may sit as a member of the court-martial at any rehearing, new trial or other trial of the same case.

 

2)         Military Judge.  The military judge at a rehearing may be the same military judge who presided over a previous trial of the same case.  The existence or absence of a request for trial by military judge alone at a previous hearing shall have no effect on the composition of a court-martial on rehearing.

 

3)         Accused's Election.  The accused at a rehearing or new or other trial shall have the same right to request enlisted members or trial by military judge alone as the accused would have at an original trial.

 

f)         Examination of Record of Former Proceedings.  No member may, upon a rehearing or upon a new or other trial, examine the record of any former proceedings in the same case except:

 

1)         When permitted to do so by the military judge after those matters have been received in evidence; or

 

2)         That the president of a special court-martial without a military judge may examine that part of the record of former proceedings that relates to errors committed at the former proceedings when necessary to decide the admissibility of offered evidence or other questions of law, and that part of the record may be read to the members when necessary for them to consider a matter, subject to objection by any member

 

g)         Sentence Limitations

 

1)         General.  Sentences at rehearings, new trials or other trials shall be adjudged within the limitations set forth in Code Sections 55 through 58, except as otherwise provided in subsection (g)(2).  Offenses on which a rehearing, new trial or other trial has been ordered shall not be the basis for an approved sentence in excess of, or more severe than, the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory.  When a rehearing or sentencing is combined with trial on new charges, the maximum punishment that may be approved by the convening authority shall be the maximum punishment under Code Sections 55 through 58 for the offenses being reheard (except as otherwise provided in subsection (g)(2)), plus the total maximum punishment under Code Sections 55 through 58 for any new charges of which the accused has been found guilty.  In the case of an "other trial", no sentence limitations apply if the original trial was invalid because a summary or special court-martial improperly tried an offense involving mandatory punishment or otherwise considered capital.

 

2)         Plea Agreement.  If, after the earlier court martial, the sentence was approved in accordance with a plea agreement and at the rehearing the accused fails to comply with the pretrial agreement, by failing to enter a plea of guilty or otherwise, the approved sentence resulting at a rehearing of the affected charges and specifications may include any otherwise lawful punishment not in excess of, or more serious than, lawfully adjudged at the earlier court-martial.

 

Section 400.1060  Disposition of Records After Review by the Convening Authority

 

a)         The original record of trial and all related documents shall be retained at Joint Force Headquarters, Office of the Staff Judge Advocate, 1301 N. MacArthur Blvd., Springfield IL 62702. 

 

b)         Court-martial convictions shall be reported to other necessary authorities in accordance with Illinois law (e.g., the FOID Act, etc.).

 

Section 400.1065  Review by State Appellate Authority

 

a)         Decisions of a court-martial are from a court with jurisdiction to issue misdemeanor and felony convictions.

 

b)         All appeals from final decisions of a court-martial shall be to the Illinois Appellate Court in the same manner as are final decisions of a circuit court in accordance with the Illinois Appellate Court Act.

 

c)         The senior force judge advocate shall coordinate with the Clerk of the Illinois Appellate Court, Fourth District to ensure that all filing requirements and State deadlines on appeal are met. 

 

d)         Upon request, the senior force judge advocate will ensure that a copy of this Manual and the Code are provided to the Clerk of the Illinois Appellate Court, Fourth District for reference during proceedings.

 

e)         No appeal from a judgment entered upon a plea of guilty shall be taken except in accordance with Article VI of the Illinois Supreme Court Rules (Appeals in Criminal Cases, Post-Conviction Cases and Juvenile Court Proceedings)

 

f)         Unless waived, an accused may appeal as a matter of right a finding of guilt resulting in an approved sentence of one-year confinement or more, or in a dismissal for a commissioned officer or warrant officer, a dishonorable discharge, or a bad-conduct discharge in the case of an enlisted member.

 

g)         The appellate rights and procedures to be followed shall be those provided by applicable law and Supreme Court Rules, Article VI. (Code Section 67a)

 

Section 400.1070  Appellate Counsel

 

a)         The senior force judge advocate shall coordinate with the Attorney General regarding review or appeal of cases specified in Code Section 67a.  The Attorney General may appoint a judge advocate nominated by the senior force judge advocate as Special Assistant Attorney General to act as appellate government counsel to represent the State.  The appointment as Special Assistant Attorney General shall be at the discretion of the Attorney General. Appellate government counsel must be a member in good standing of the Illinois bar.

 

b)         Upon an appeal by the State, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.

 

c)         Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.

 

d)         Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (b) and (c).

 

e)         An accused may be represented by civilian appellate counsel at no expense to the State.  (Code Section 70)

 

Section 400.1075  Execution of Sentence

 

a)         Suspension of Sentence 

 

1)         If the approved sentence of the court-martial extends to 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 Code Section 61, that part of the sentence extending to 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.  A judgment as to the legality of the proceedings is final in these cases when review is completed by the Illinois Appellate Court for the Fourth District (see Code Section 67a) and is deemed final by the law of this State.

 

2)         If the sentence of the court-martial 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 Code Section 61, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under Code Section 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 Code Section 60 when so approved under that statute. (Code Section 71)

 

b)         Vacation of Suspension

 

1)         Before the vacation of the suspension of a special court-martial sentence that, 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 an alleged violation of probation.  The probationer shall be represented at the hearing by military counsel if the probationer so desires.

 

2)         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 the officer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in the Code.

 

3)         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.  (Code Section 72)

 

Section 400.1080  Petition for a New Trial

 

a)         At any time within 2 years after approval by the convening authority of a court-martial sentence, the accused may petition the Adjutant General for a new trial on the grounds of newly discovered evidence or fraud on the court-martial. (Code Section 73)

 

b)         A petition for a new trial of the facts may not be submitted on the basis of newly discovered evidence when the petitioner was found guilty of the relevant offense pursuant to a guilty plea.

 

c)         The form of the petition shall comply with RCM 1210.

 

d)         Newly Discovered Evidence.  A new trial shall not be granted on the grounds of newly discovered evidence unless the petition shows that:

 

1)         The evidence was discovered after trial;

 

2)         The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and

 

3)         The newly discovered evidence, if considered by a court martial in light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.

 

e)         Fraud on Court-martial.  No fraud on the court-martial warrants a new trial unless it had a substantial contributing effect on a finding of guilty or the sentenced adjudged.

 

Section 400.1085  Remission and Suspension of Sentence; Restoration

 

a)         Remission and Suspension of Sentence

 

1)         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 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 Governor.

 

2)         The Governor 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.  (Code Section 74)

 

b)         Restoration

 

1)         Under such regulations as may be prescribed, all rights, privileges and property affected by an executed part of a court-martial sentence that has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed upon the new trial or rehearing.

 

2)         If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Governor may substitute a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment.

 

3)         If a previously executed sentence of dismissal is not imposed on a new trial, the Governor may substitute a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Governor alone to the commissioned grade and with such rank as, in the opinion of the Governor, he or she would have attained had he or she 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 Governor 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, as permitted by applicable financial management regulations.  (Code Section 75)

 

Section 400.1090  Finality of Proceedings, Findings and Sentence

 

a)         The appellate review of records of trial provided by the Code, the proceedings, findings, and sentences of courts-martial as approved, reviewed or affirmed as required by the Code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review or affirmation as required by the Code, are final and conclusive.

 

b)         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 and the several states, subject only to action upon a petition for a new trial as provided in Code Section 73 and to action under Code Section 74.  (Code Section 76)

 

Section 400.1095  Leave Required to be Taken Pending Review of Certain Court-Martial Convictions

 

a)         Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action if the sentence, as approved under Code Section 60, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge.

 

b)         The accused may be required to begin leave on the date on which the sentence is approved under Code Section 60 or at any time after that date. The leave may be continued until it is completed or may be terminated at any earlier time in accordance with applicable regulations of the armed forces. (Code Section 76a)

 

Section 400.1100  Military Offenses

 

a)         This Subpart J outlines the military offenses, also referred to as Punitive Articles, for which charges can be brought under the Code and this Manual.

 

b)         Directory of Military Offenses

 

SUBSECTION OF SECTION 400.1100	MILITARY OFFENSE/ PUNITIVE ARTICLE	CODE SECTION [20 ILCS 1807]
(c)(1)	Accessory After the Fact	78
(c)(2)	Conviction of Lesser Included Offense	79
(c)(3)	Attempts	80
(c)(4)	Conspiracy	81
(c)(5)	Solicitation	82
(c)(6)	Fraudulent Enlistment, Appointment or Separation	83
(c)(7)	Unlawful Enlistment, Appointment or Separation	84
(c)(8)	Desertion	85
(c)(9)	Absence Without Leave	86
(c)(10)	Missing Movement	87
(c)(11)	Contempt Toward Official	88
(c)(12)	Disrespect Toward Superior Commissioned Officer	89
(c)(13)	Assaulting or Willfully Disobeying Superior Commissioned Officer	90
(c)(14)	Insubordinate Conduct Toward a Warrant Officer, Noncommissioned Officer or Petty Officer	91
(c)(15)	Failure to Obey Order or Regulation	92
(c)(16)	Cruelty and Maltreatment	93
(c)(17)	Mutiny or Sedition	94
(c)(18)	Resistance, Flight, Breach of Arrest, and Escape	95
(c)(19)	Releasing Prisoner Without Proper Authority	96
(c)(20)	Unlawful Detention	97
(c)(21)	Noncompliance with Procedural Rules	98
(c)(22)	Misbehavior Before the Enemy	99
(c)(23)	Subordinate Compelling Surrender	100
(c)(24)	Improper Use of Countersign	101
(c)(25)	Forcing a Safeguard	102
(c)(26)	Captured or Abandoned Property	103
(c)(27)	Aiding the Enemy	104
(c)(28)	Misconduct as a Prisoner	105
(c)(29)	False Official Statement	107
(c)(30)	Military Property – Loss, Damage, Destruction or Wrongful Disposition	108
(c)(31)	Property Other Than Military Property – Waste, Spoilage or Destruction	109
(c)(32)	Improper Hazarding of Vessel	110
(c)(33)	Drunk on Duty	111
(c)(34)	Wrongful Use, Possession, Etc., of Controlled Substances	112a
(c)(35)	Misbehavior of Sentinel	113
(c)(36)	Dueling	114
(c)(37)	Malingering	115
(c)(38)	Riot or Breach of Peace	116
(c)(39)	Provoking Speeches or Gestures	117
(c)(40)	Frauds Against the Government	132
(c)(41)	Conduct Unbecoming an Officer and a Gentleman	133
(c)(42)	General Article	134

 

c)         Military Offenses

 

1)         Accessory After the Fact

Any person subject to the Code who, knowing that an offense punishable by the Code has been committed, receives, comforts or assists the offender in order to hinder or prevent his or her apprehension, trial or punishment shall be punished as a court-martial may direct. (Code Section 78)

 

2)         Conviction of a 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 in the charge. (Code Section 79)

 

3)         Attempts

 

A)        An act, done with specific intent to commit an offense under the Code, 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 the Code who attempts to commit any offense punishable by the Code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

 

C)        Any person subject to the Code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated. (Code Section 80)

 

4)         Conspiracy

Any person subject to the Code who conspires with any other person to commit an offense under the Code 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. (Code Section 81)

 

5)         Solicitation

 

A)        Any person subject to the Code who solicits or advises another or others to desert in violation of Code Section 85 or mutiny in violation of Code Section 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, the person shall be punished as a court-martial may direct.

 

B)        Any person subject to the Code who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of Code Section 99 or sedition in violation of Code Section 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, the person shall be punished as a court-martial may direct. (Code Section 82)

 

6)         Fraudulent Enlistment, Appointment or Separation

Any person who procures his or her own enlistment or appointment in the SMF by knowingly false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowance thereunder, or procures his or her own separation from the SMF by knowingly providing false representation or deliberate concealment as to his or her eligibility for that separation, shall be punished as a court-martial may direct. (Code Section 83)

 

7)         Unlawful Enlistment, Appointment or Separation

Any person subject to the Code who effects an enlistment or appointment in or a separation from the SMF of any person who is known to him or her 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. (Code Section 84)

 

8)         Desertion

 

A)        Any member of the SMF is guilty of desertion who:

 

i)          without authority goes or remains absent from his or her unit, organization, or place of duty with intent to remain away permanently;

 

ii)         quits his or her unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service; or

 

iii)        without being regularly separated from one of the State military forces enlists or accepts an appointment in the same or another state military force, or in one of the armed forces of the United States, without fully disclosing the fact that he or she has not been regularly separated, or enters any foreign armed service except when authorized by the United States.

 

B)        Any commissioned SMF officer who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away 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 confinement of not more than 10 years 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 as a court-martial may direct. (Code Section 85)

 

9)         Absence Without Leave

Any person subject to the Code who, without authority, fails to go to his or her appointed place of duty at the time prescribed, goes from that place, or absents himself or herself or remains absent from his or her unit, organization, or place of duty at which he or she is required to be at the time prescribed, shall be punished as a court-martial may direct. (Code Section 86)

 

10)       Missing Movement

Any person subject to the Code who, through neglect or design, misses the movement of a ship, aircraft or unit with which he or she is required in the course of duty to move shall be punished as a court-martial may direct. (Code Section 87)

 

11)       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 Illinois Governor or General Assembly shall be punished as a court-martial may direct. (Code Section 88)

 

12)       Disrespect Toward a Superior Commissioned Officer

Any person subject to the Code who behaves with disrespect toward his or her superior commissioned officer shall be punished as a court-martial may direct. (Code Section 89)

 

13)       Assaulting or Willfully Disobeying a Superior Commissioned Officer

Any person subject to the Code who strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against his or her superior commissioned officer while that officer is in the execution of his or her office, or who willfully disobeys a lawful command of his or her superior commissioned officer, shall be punished, if the offense is committed in a time of war, by confinement of not more than 10 years or such other punishment as a court-martial may direct. If the offense is committed at any other time, the punishment shall be as a court-martial may direct. (Code Section 90)

 

14)       Insubordinate Conduct Toward a Warrant Officer, Noncommissioned Officer, or Petty Officer

Any warrant officer or enlisted member who commits any of the following offenses shall be punished as a court-martial may direct:

 

A)        strikes or assaults a warrant officer, noncommissioned officer or petty officer while that officer is in the execution of his or her office;

 

B)        willfully disobeys the lawful order of a warrant officer, noncommissioned officer or petty officer; or

 

C)        treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer or petty officer, while that officer is in execution of his or her office. (Code Section 91)

 

15)       Failure to Obey Order or Regulation

Any person subject to the Code who commits any of the following offenses shall be punished as a court-martial may direct:

 

A)        violates or fails to obey any lawful general order or regulation;

 

B)        having knowledge of any other lawful order issued by an SMF member that it is his or her duty to obey, fails to obey the order; or

 

C)        is derelict in the performance of his or her duties. (Code Section 92)

 

16)       Cruelty and Maltreatment

Any person subject to the Code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his or her orders shall be punished as a court-martial may direct. (Code Section 93)

 

17)       Mutiny or Sedition

 

A)        Offenses Defined

 

i)          Mutiny.  Any person subject to the Code who, with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance is guilty of mutiny.

 

ii)         Sedition.  Any person subject to the Code who, 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; or

 

iii)        Failure to Suppress or Report a Mutiny or Sedition.  Any person subject to the Code who fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence, or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of a mutiny or sedition that he or she 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 committing or attempting to commit an offense defined in subsection (c)(17) shall be punished as a court-martial may direct. (Code Section 94)

 

18)       Resistance, Flight, Breach of Arrest and Escape

Any person subject to the Code who commits any of the following shall be punished as a court-martial may direct:

 

A)        resists apprehension;

 

B)        flees from apprehension;

 

C)        breaks arrest; or

 

D)        escapes from custody or confinement. (Code Section 95)

 

19)       Releasing Prisoner Without Proper Authority

Any person subject to the Code who, without proper authority, releases any prisoner committed to his or her 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. (Code Section 96)

 

20)       Unlawful Detention

Any person subject to the Code who, except as provided by law or regulation, apprehends, arrests or confines any person shall be punished as a court-martial may direct. (Code Section 97)

 

21)       Noncompliance with Procedural Rules

Any person subject to the Code who is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under the Code, or knowingly and intentionally fails to enforce or comply with any provision of the Code regulating the proceedings before, during or after trial of an accused, shall be punished as a court-martial may direct. (Code Section 98)

 

22)       Misbehavior Before the Enemy

Any person subject to the Code who, before or in the presence of the enemy, commits any of the following shall be punished as a court-martial may direct:

 

A)        runs away;

 

B)        shamefully abandons, surrenders or delivers up any command, unit, place or military property that it is his or her duty to defend;

 

C)        through disobedience, neglect or intentional misconduct endangers the safety of any command, unit, place or military property;

 

D)        casts away his or her arms or ammunition;

 

E)        is guilty of cowardly conduct;

 

F)         quits his or her place of duty to plunder or pillage;

 

G)        causes false alarms in any command, unit or place under control of the armed forces of the United States or the SMF;

 

H)        willfully fails to do his or her utmost to encounter, engage, capture or destroy any enemy troops, combatants, vessels, aircraft, or any other thing that it is his or her duty to encounter, engage, capture or destroy; or

 

I)         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 its allies, to the State, or to any other state, when engaged in battle. (Code Section 99)

 

23)       Subordinate Compelling Surrender

Any person subject to the Code who compels or attempts to compel the commander of the military forces of this State or of any other state, 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 as a court-martial may direct. (Code Section 100)

 

24)       Improper Use of Countersign

Any person subject to the Code who in time of war discloses the parole (i.e., watchword) 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 or her knowledge, he or she was authorized and required to give, shall be punished as a court-martial may direct. (Code Section 101)

 

25)       Forcing a Safeguard

Any person subject to the Code who forces a safeguard shall be punished as a court-martial may direct. (Code Section 102)

 

26)       Captured or Abandoned Property

 

A)        All persons subject to the Code shall secure all public property taken for the service of the United States or the State, 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 the Code shall be punished as a court-martial may direct who:

 

i)          fails to carry out the duties prescribed in subsection (c)(26)(A);

 

ii)         buys, sells, trades or in any way deals in or disposes of taken, captured or abandoned property, whereby he or she receives or expects any profit, benefit or advantage to himself or another directly or indirectly connected with himself; or

 

iii)        engages in looting or pillaging. (Code Section 103)

 

27)       Aiding the Enemy

Any person subject to the Code shall be punished as a court-martial may direct who:

 

A)        aids, or attempts to aid, the enemy with arms, ammunition, supplies, money or other things; or

 

B)        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. (Code Section 104)

 

28)       Misconduct as a Prisoner

Any person subject to the Code shall be punished as a court-martial may direct who, while in the hands of the enemy in time of war:

 

A)        for the purpose of securing favorable treatment by his or her 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

 

B)        while in a position of authority over other military or civilian prisoners, maltreats them without justifiable cause. (Code Section 105)

 

29)       False Official Statements

Any person subject to the Code who, with intent to deceive, signs any false record, return, regulation, order or other official document made in the line of duty, knowing it to be false, or makes any other false official statement made in the line of duty, knowing it to be false, shall be punished as a court-martial may direct. (Code Section 107)

 

30)       Military Property − Loss, Damage, Destruction or Wrongful Disposition

Any person subject to the Code who, without proper authority, sells or otherwise disposes of, willfully or through neglect damages, destroys or loses, or willfully or through neglect suffers to be lost, damaged, destroyed, sold or wrongfully disposed of, any military property of the United States or of any state shall be punished as a court-martial may direct. (Code Section 108)

 

31)       Property Other Than Military Property – Waste, Spoliation or Destruction

Any person subject to the Code who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the State of Illinois, the United States, or any other state shall be punished as a court-martial may direct. (Code Section 109)

 

32)       Improper Hazarding of Vessel

 

A)        Any person subject to the Code who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces of the State of Illinois, the United States, or any other state shall suffer such punishment as a court-martial may direct.

 

B)        Any person subject to the Code who negligently hazards or suffers to be hazarded any vessel of the armed forces of the State of Illinois, the United States, or any other state shall be punished as a court-martial may direct. (Code Section 110)

 

33)       Drunk on Duty

Any person subject to the Code, other than a sentinel or look-out (see subsection (c)(35)), who is found drunk on duty shall be punished as a court-martial may direct. (Code Section 112)

 

34)       Wrongful Use, Possession, Etc., of Controlled Substances

 

A)        Any person subject to the Code 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 of the United States or of any state military forces a substance described in subsection (c)(34)(B) shall be punished as a court-martial may direct.

 

B)        The substances referred to in subsection (c)(34)(A) are the following:

 

i)          Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid and marijuana, and any compound or derivative of any of these substances.

 

ii)         Any substance not specified in subsection (c)(34)(B)(i) that is listed on a schedule of controlled substances prescribed by the President for the purposes of the Uniform Code of Military Justice of the armed forces of the United States.

 

iii)        Any other substance not specified in subsection (c)(34)(B)(i) or contained on a list prescribed by the President under subsection (c)(34)(B)(ii) that is a Schedule I through V substance under Article 202 of the federal Controlled Substances Act. (Code Section 112A)

 

35)       Misbehavior of a Sentinel

Any sentinel or look-out who is found drunk or sleeping at his or her post, or leaves it before being regularly relieved, shall be punished, if the offense is committed in time of war, by confinement of not more than 10 years or other punishment as a court-martial may direct. If the offense is committed at any other time, punishment shall be as a court-martial may direct. (Code Section 113)

 

36)       Dueling

Any person subject to the Code who fights, promotes, 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 fact promptly to the proper authority, shall be punished as a court-martial may direct. (Code Section 114)

 

37)       Malingering

Any person subject to the Code who, for the purpose of avoiding work, duty or service, feigns illness, physical disablement, mental lapse or derangement, or intentionally inflicts self-injury, shall be punished as a court-martial may direct. (Code Section 115)

 

38)       Riot or Breach of Peace

Any person subject to the Code who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct. (Code Section 116)

 

39)       Provoking Speeches or Gestures

Any person subject to the Code who uses provoking or reproachful words or gestures towards any other person subject to the Code shall be punished as a court-martial may direct. (Code Section 117)

 

40)       Frauds Against the Government

Any person subject to the Code shall be punished as a court-martial may direct who:

 

A)        knowing it to be false or fraudulent:

 

i)          makes any claim against the United States, the State, or any officer of either; or

 

ii)         presents to any person in the civil or military service, for approval or payment, any claim against the United States, the State, or any officer of either;

 

B)        for the purpose of obtaining the approval, allowance or payment of any claim against the United States, the State, or any officer of either:

 

i)          makes or uses any writing or other paper knowing it to contain any false or fraudulent statements;

 

ii)         makes any oath, affirmation or certification to any fact or to any writing or other paper knowing the oath, affirmation or certification to be false; or

 

iii)        forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited;

 

C)        having charge, possession, custody or control of any money or other property of the United States or the State, furnished or intended for the armed forces of the United States or the SMF, knowingly delivers to any person having authority to receive it, any amount less than that for which he or she receives a certificate or receipt; or

 

D)        being authorized to make or deliver any paper certifying the receipt of any property of the United States or the State, furnished or intended for the armed forces of the United States or the SMF, makes or delivers to any person that writing without having full knowledge of the truth of the statements in the writing and with intent to defraud the United States or this State. (Code Section 132)

 

41)       Conduct Unbecoming an Officer and a Gentleman

Any commissioned officer, cadet, candidate or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. (Code Section 133)

 

42)       General Article

Though not specifically mentioned in the Code, all disorders and neglects to the prejudice of good order and discipline in the SMF and all conduct of a nature to bring discredit upon the SMF shall be taken cognizance of by a court-martial and punished at the discretion of a military court.  However, when a crime constitutes an offense that violates both the Code and the criminal laws of the state where the offense occurs or criminal laws of the United States, jurisdiction of the military court must be determined in accordance with Code Section 2(b). (Code Section 134)

 

Section 400.1200  Definitions

 

"AGR" means Active Guard Reserve.

 

"ANG" means the Illinois Air National Guard.

 

"Appropriate Nonpunitive Administrative Measures" means such actions as reprimands, administrative reduction in rank, administrative separation from SMF, etc.).

 

"ARNG" means the Illinois Army National Guard.

 

"Commander", as used in this Subpart, means a commissioned or warrant officer who, by virtue of his or her or grade and assignment, exercises primary command authority over a military unit or organization recognized as a command. This term includes active duty and SMF commanders, whether in a Title 10 (U.S. Military) or Title 32 (National Guard) status, of installations or schools when a member's SMF commander is not also at the installation or school.

 

"Department" or "DMA" means the Illinois Department of Military Affairs.

 

"ETS" means expiration of term of service.

 

"Federal Uniform Code of Military Justice" or "UCMJ" means 10 USC 801 et seq.

 

"IDT" means inactive duty training.

 

"Illinois Code of Military Justice" or "Code" means 20 ILCS 1807.

 

"Imposing Commander" refers to the commander who actually imposes the NJP.  The Adjutant General shall not act as an imposing commander, and he or she shall delegate NJP authority to an officer he or she deems appropriate.  This delegation may be oral or in writing, and the delegation may specify a category of cases or only a particular case.

 

"Manual" means this Part, the Illinois Manual for Courts-Martial and Nonjudicial Punishment.

 

"Member" means a member of the State Military Force.

 

"Members of His or Her Command" refers to the assigned members of the unit or organization commanded, and to other members who are on temporary duty with, or otherwise attached to, the unit or organization.  Attachment orders are not necessary if the commander exercises the usual responsibilities and attributes of command over the member.

 

"Minor Offense" means an offense made punishable by the military law of the United States, the laws of the State of Illinois, or the laws of the state in which the offense is committed (e.g., absence without leave (AWOL), disrespect).

 

"Next Superior Commander" refers to the next superior in the chain of command, or another authority designated by the Adjutant General as being next superior for NJP purposes.

 

"NGIL Forms" means the forms initiating and recording all nonjudicial punishment proceedings.  Those forms can be seen on the websites at www.il.ngb.army.mil or www.goang.com/locations/illinois. The following are the NGIL Forms referenced in this Subpart:

 

"NGIL Form 60-R" means the form titled Record of Nonjudicial Punishment Proceedings. This form includes identifying information, the allegations, the record of the proceedings, and the outcome of the proceedings.

 

"NGIL Form 61-R" means the form titled Record of Supplementary Nonjudicial Punishment Action. This form is used when the outcome recorded on the NGIL Form 60-R is appealed and an appropriate authority suspends, mitigates, remits or sets aside a punishment.

 

"NGIL Form 62-R" means the form titled Record of Vacation of Suspended Nonjudicial Punishment.

 

"NGIL Form 63-R" means the form titled Request to Superior to Exercise Nonjudicial Punishment Authority. This form is used when a notifying commander who does not have certain punishment authorities pertaining to the SMF member through the NJP procedure requests that a superior commander who does exercise NJP authority reduce the rank.

 

"NGIL-HRO" means the Illinois National Guard Human Resources Office.

 

"NGIL-JA" means an Illinois National Guard Office of the Staff Judge Advocate.

 

"Nonjudicial Punishment" or "NJP" means disciplinary action without a judicial process (i.e., court-martial).

 

"Notifying Commander" refers to the commander who initiates NJP proceedings and completes item 1 of NGIL Form 60-R.

 

"Remission of Punishment" or "Remit Punishment" means to rescind punishment that has been imposed.

 

"SMF" means the State Military Forces subject to the Illinois Code of Military Justice.

 

Section 400.1205  Nonjudicial Punishment

 

a)         General. This Subpart prescribes the requirements, policies, limitations and procedures for the imposition of nonjudicial punishment (NJP) pursuant to the Adjutant General's authority under Code Section 15.  It is a modification of Part V of the MCM and should be interpreted consistent with the MCM. Unless modified by the Code or this Part, the applicable procedures contained in NGIL 27-10 and NGIL ANG Instruction 51-202 (both 2010; no later amendments or additions are incorporated) apply to NJP administered under this Subpart.

 

b)         Use of Nonjudicial Punishment

 

1)         Commander's Responsibility. Commanders are responsible for good order and discipline in their commands. Generally, discipline can be maintained through effective leadership, including administrative corrective measures. A commander should use nonpunitive disciplinary tools (e.g., counseling and reprimands) to the fullest extent to further the efficiency of the command before resorting to NJP. However, NJP may be used in all misconduct cases involving minor offenses for which the commander considers nonpunitive measures to be inadequate or inappropriate. In determining the method of discipline, commanders should consider the nature of the offense, the record of the service member, the need for good discipline, and the effect of punitive measures on the service member's record. All disciplinary measures shall be resolved at the lowest appropriate level and shall use the least severe discipline appropriate to the offense.

 

2)       Statute of Limitations.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may not be imposed for offenses committed more than 3 years before the date of initiation of NJP. 

 

3)       Applicability of Army or Air Force NJP Regulations

When the use of NJP is appropriate, the procedures of this Subpart shall be used in lieu of the administrative reduction in rank procedures created by applicable personnel regulations (Army Regulation (AR) 600-8-19, NGR (AR) 600-200 or ANGI 36-2503, etc.).  When a situation arises that is not addressed by this Subpart, the Army or Air Force regulations concerning NJP should be consulted for guidance, as appropriate (e.g., AR 27-10, Air Force Instruction (AFI) 51-202).

 

4)         Restriction on Punishment after Exercise of Jurisdiction by Civilian Authorities. An SMF member who has been tried in a civilian court may, but normally will not, be disciplined under this Subpart for the same acts over which the civilian court exercised jurisdiction. NJP action should not be used to discipline SMF members for civil court convictions because, in that instance, civil authorities have already disposed of criminal allegations and imposed criminal punishments. In cases of civil court convictions, the chain of command should normally consider appropriate administrative (i.e., nonpunitive) measures. Prior to imposition of NJP on SMF members for offenses that have been disposed of by civilian courts, commanders must obtain written approval of the Adjutant General or designee. Requests for that approval shall be staffed through command channels to:

 

Office of the Adjutant General

ATTN: NGIL-JA 

1301 N. MacArthur Blvd.

Springfield IL 62702-2317

 

c)         Personal Exercise of Discretion

 

1)         A commander shall personally exercise discretion in the NJP process by:

 

A)        Evaluating the case to determine whether NJP proceedings should be initiated.

 

B)        Determining whether the member committed the offenses for which NJP proceedings are initiated.

 

C)        Determining the amount and nature of any punishment, if punishment is appropriate.

 

2)         No superior may direct any subordinate commander to impose NJP on any individual.

 

3)         No superior may issue regulations or guidance that either directly or indirectly suggests to subordinate commanders that:

 

A)        Certain categories of offenders or offenses should be disposed of by NJP (e.g., AWOL members shall be processed for NJP).

 

B)        Predetermined kinds or amounts of punishment should be imposed for certain categories of offenders or offenses (e.g., AWOL NCOs shall be reduced one grade).

 

d)         Multiple Punishments

 

1)         When a commander determines that NJP is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by NJP and ready to be considered at that time, including all the applicable offenses arising from a single incident or course of conduct, shall ordinarily be considered together and not made the basis for multiple punishments.

 

2)         Double Jeopardy Prohibited

When a punishment has been imposed under NJP, or NJP proceedings are terminated for a reason tantamount to a finding of not guilty, further punishment may not be imposed for the same offense.  Same offense means an offense that was part of a single incident or course of action. Administrative action, including administrative discharge proceedings, can be taken for an offense previously punished under NJP proceedings and does not constitute double punishment under this Subpart.

 

e)         Cases Involving State or Federal Prosecution Interest

If an offense is subject to both NJP proceedings and to criminal trial in a State or federal court, the commander shall consult NGIL-JA prior to initiation of NJP proceedings.

 

f)         Standard of Proof

 

1)         NJP determinations must be supported by substantial evidence. For NJP purposes, this means a measure or degree of proof that reasonably convinces the imposing commander of the SMF member's guilt, considering:

 

A)        all available direct evidence, i.e., evidence based on actual knowledge or observation of witnesses; and

 

B)        all available indirect evidence, i.e., facts or statements from which reasonable inferences, deductions and conclusions may be drawn to establish an unobserved fact, knowledge or state of mind.

 

2)         When considering the evidence, no distinction shall be made between the relative value of direct and indirect evidence.  In some cases, direct evidence may be more convincing than indirect evidence and, in other cases, indirect evidence may be more convincing than the statement of an eyewitness.

 

g)         Effect of Errors. Failure to comply with any of the procedural provisions in this Subpart shall not invalidate a punishment imposed under the Code, unless the error materially prejudiced a substantial right of the service member on whom the punishment was imposed.

 

Section 400.1210  Authority

 

a)         Who May Impose Nonjudicial Punishment

 

1)         Unless otherwise specified in this Subpart, or if authority to impose NJP has been limited or withheld by a superior commander (see subsection (a)(2)), any commander may impose NJP on members of his or her command for minor offenses.

 

2)         A commander at any level may withhold from any subordinate commander all or part of the NJP authority that he or she would otherwise have had under this Subpart, such as over certain categories of military personnel, offenses or individual cases. The withholding action may be oral, in writing, or incorporated in a permanent directive, but it must clearly set out the specific authority withheld.

 

3)         To impose NJP on officers, warrant officers, or enlisted personnel in grades E-8 or E-9, the commander must be in the rank of colonel or above and be assigned to at least a brigade/group/wing command position.

 

4)         If a commander is the victim of a crime in his or her personal capacity (e.g., victim of an assault or larceny), as opposed to his or her official capacity (e.g., violation of commander's order), that commander shall forward a report of the incident to the next superior commander for review and appropriate action.

 

b)         Persons on Whom Nonjudicial Punishment May Be Imposed

NJP may be imposed on the following persons, regardless of whether the offense was committed inside or outside the State of Illinois:

 

1)       Members of the SMF for offenses committed while in a military duty or training status pursuant to 32 USC.

 

2)       Members of the SMF for offenses committed while in a State Active Duty status pursuant to orders of the Governor.

 

3)       All other persons lawfully ordered to duty in or with the SMF for the time period stated in the order or other directive.

 

Section 400.1215  Procedure

 

a)         General. The authority to impose NJP charges a commander with the responsibility of exercising his or her authority in an absolutely fair and judicious manner.  The commander's action must be temperate, just and conducive to good order and discipline.

 

b)         Preliminary Inquiry.  The commander of the alleged offender must ensure that the matter is promptly and adequately investigated. The preliminary investigation is usually informal and consists of interviews with witnesses and/or review of police/investigative reports, if available.  The investigation should cover:

 

1)         Whether an offense was committed;

 

2)         The nature and circumstances of the offense; and

 

3)         The age, maturity, experience and military record of the offender.

 

c)         Initiation of Proceedings and Referral to Superior.  A commander who, after a preliminary inquiry, determines that NJP proceedings may be appropriate, should consult with his or her Staff Judge Advocate for advice and assistance. NJP action should be initiated at the lowest level of command commensurate with the needs of discipline. If a commander determines his or her authority under NJP is insufficient to impose a proper punishment, the matter may be referred to a superior commander for initiation of proceedings (e.g., the offense may warrant reduction but the immediate commander does not have reduction authority).  In such a case, all relevant documents shall be forwarded through command channels to the appropriate commander using NGIL Form 63-R (Request to Superior to Exercise Nonjudicial Punishment Authority).  The superior commander shall either initiate the NJP action or refer the matter for other appropriate action.

 

d)         Notification

 

1)         The appropriate commander shall complete item 1 of NGIL Form 60-R (Record of Nonjudicial Punishment Proceedings) as follows:

 

A)        State the allegation following the guidance provided by DMA and consult the appropriate Staff Judge Advocate for assistance.  However, an NJP action remains valid even if the specification fails to include all the elements of an offense, provided that the member is reasonably informed of the nature of the alleged misconduct.

 

B)        Inform the SMF member of his or her rights with respect to the NJP proceeding.

 

C)        State the name, rank and duty title of the next superior commander.

 

D)        Contact the appropriate Staff Judge Advocate or NGIL-JA for assignment of a military counsel to assist the member.  At a minimum, the military counsel's name, rank and business telephone number shall be listed on the form, but his or her home addresses or telephone numbers shall not be included.

 

E)        State the date and time at which the member must report to you to make his or her elections and presentation, if applicable.  In this regard, the member shall be given a reasonable period of time to consult with counsel, to prepare his or her case, and to decide what rights noted under subsection (e) he or she shall exercise.  The length of the decision period shall be determined by the notifying commander after considering such factors as the complexity of the case and the availability of counsel and witnesses.  An NJP action may be initiated and completed within an inactive duty training (IDT) weekend if:

 

i)          it is a non­complex case, i.e., an uncontested case;

 

ii)         the notifying commander ensures availability of counsel and witnesses; and

 

iii)        the member is provided sufficient duty time to prepare his or her defense.

 

F)         Sign in the commander's signature block. The signature of the commander is nondelegable.

 

2)         The notifying commander shall personally notify the member of the initiation of NJP proceedings in accordance with DMA guidance. However, when circumstances prevent the commander from personally notifying and serving the NGIL Form 60-R on the member, or the notifying commander elects not to do so, the notifying commander may direct a subordinate who is senior in rank to the member to notify and serve the member.  The commander or the subordinate, as appropriate, shall date and sign item 2 (proof of service) of the NGIL Form 60-R when the member is served.  Regardless of who serves the member, a copy of the NGIL Form 60-R shall be given to the member at that time.  If personal notification is impractical because of the member's unauthorized absence or other reason, the member may be notified by certified mail, and the commander shall document the reason for the service by mail in item 11 of the NGIL Form 60-R. The member also has the right to examine all statements and evidence upon which the commander intends to rely in arriving at a decision whether to impose punishment, and the type and amount of punishment to be imposed, unless those matters are privileged or restricted by law or regulation (e.g., Office of Special Investigation (OSI) or Criminal Investigation Command (CID) reports, classified information, etc.). In this case, NJP proceedings may proceed if the member's counsel has access to the records, or a summary of the information, for use in preparing a defense to the allegations.

 

3)         The SMF member shall be informed of the maximum punishment that may be imposed under Appendix A if he or she is found guilty of the alleged offenses; however, the member is not entitled to be informed of the type or amount of punishment he or she will receive if NJP ultimately is imposed.

 

4)         If a new commander takes command after NJP proceedings are initiated, but before the member presents his or her case to the imposing commander, a new NGIL Form 60-R shall be initiated by the new commander. Once again, the member shall be given a reasonable decision period in which to consult counsel.

 

5)         When evidence of an additional offense or offenses arises following initiation of NJP proceedings, and before the member is notified of the punishment, a commander may:

 

A)        Withdraw the initial NGIL Form 60-R and reinitiate NJP proceedings to include the additional offenses; or

 

B)        Proceed with the initial NJP proceeding and create a second NGIL Form 60-R for the additional offenses.

 

e)         Member's Election of Rights

 

1)         The member has the following rights during NJP proceedings:

 

A)        To remain silent and not make any statement concerning the allegations. However, if the member waives this right, any statements made may be used against him in the NJP proceedings or in any other proceedings.

 

B)        To consult with appointed military counsel. The member is not entitled to request military counsel of his or her choice, but the member may consult with civilian counsel retained at the member's own expense.

 

C)        To make a personal presentation before the next superior commander in lieu of presenting his or her case before the notifying commander. To fully present his or her case before the imposing commander in writing or in person, or both (subject to subsection (f)).  This includes the right to call witnesses if determined reasonably available by the imposing commander, the right to present evidence, to be represented by a spokesperson (if reasonably available), and to examine available evidence.

 

2)         The member has the right to consult with appointed military counsel (in person or by telephone) prior to making his or her elections under subsection (e)(1)(C).  If necessary, the member or his or her counsel may request an extension of the time period stated in item 1 of the NGIL Form 60-R.  Such a request should be in writing, stating the reasons for the request. The commander may grant an extension for good cause shown by the member or his or her counsel.

 

3)         A member requesting a personal presentation before the notifying commander shall indicate that request in item 3 of the NGIL Form 60-R. The presentation shall be made at that time or at such time as the commander directs.

 

4)         If the member requests a personal presentation before the next superior commander, the member shall so indicate in item 3 of the NGIL Form 60-R. The notifying commander shall forward all documents, statements and evidence to that commander.  The next superior commander shall then review the information, collect any additional information he or she feels is necessary, and notify the member and his or her counsel of the date and time of the presentation.

 

5)         If the member does not notify the commander of his or her decision within the specified time and does not request a delay, or if the member refuses to complete or sign item 3 of the NGIL Form 60-R, the notifying commander may continue the proceedings based on available information. If punishment is imposed, that information shall be recorded in item 4 (commander's decision) of the NGIL Form 60-R, along with the following entry:  "Advised of his/her rights and (member failed to respond within the specified time) (member refused to complete and sign item 3)".

 

f)         Member's Presentation

 

1)         Following DMA guidance, the member shall be allowed to personally present matters in defense, extenuation or mitigation to the imposing commander, except when a personal appearance is prevented by unavailability of the commander or by extraordinary circumstances (e.g., the member is stationed at a geographic location remote from that of the imposing commander and cannot be readily brought before the commander).  When a personal appearance is requested, but is not granted, the imposing commander shall appoint a commissioned officer who is superior to the member to conduct the presentation, and the member shall be entitled to make a personal presentation before that designated officer.  The designated officer shall then prepare a memorandum summarizing the member's presentation and shall forward it to the imposing commander, along with all written matters submitted by the member.

 

2)         The purpose of the personal presentation is to allow the member to present information to the commander in a manner that may be more effective or more persuasive than a written presentation. Formal rules of evidence are not applicable. The commander may consider any matter, including unsworn statements, that he or she believes to be relevant to the offense.  The commander may ask questions to clarify facts or issues; however, the member's presentation is not an adversarial proceeding.  The commander shall not present "government" witnesses or evidence, and neither the member nor a spokesperson (including any attorney present on behalf of the member) may examine or cross-examine witnesses, unless permitted by the imposing commander.

 

3)         NJP presentations may be open or closed to members of the public at the discretion of the imposing commander. However, even when closed, the commander may have a member of his or her staff (e.g., the First Sergeant) attend the proceedings as he or she determines appropriate.

 

4)         At the presentation, the member shall be entitled to:

 

A)        Examine any relevant documents or physical objects on which the commander intends to rely in deciding whether to impose punishment or how much punishment to impose (subject to the limitations of subsection (d)(2)).

 

B)        Be accompanied by a spokesperson provided or arranged for by the member.  The member's spokesperson may be his or her appointed military counsel or civilian counsel retained at his or her own expense. However, the member has no right to legal counsel at the presentation, and the commander need not grant a delay for the appearance of any spokesperson if that person is not reasonably available, as determined by the commander.

 

C)        Present relevant witnesses in defense, extenuation or mitigation who are reasonably available, as determined by the commander, and can be presented without legal process. To determine whether a witness is reasonably available, the imposing commander shall consider the fact that written statements are acceptable. Neither witness nor transportation fees are authorized to be paid.  Reasonably available witnesses will normally include only personnel at the installation concerned, and those personnel whose attendance shall not unnecessarily delay the proceedings.

 

5)         The imposing commander must carefully consider all matters submitted by the member in defense, extenuation or mitigation. If, after evaluation of all pertinent matters, the imposing commander determines that NJP is not warranted, the commander shall so indicate in item 4 of the NGIL Form 60-R, the member shall be notified, and the proceedings shall be terminated.

 

6)         If, after evaluation of all pertinent matters, the imposing commander determines that NJP is warranted, the commander shall line out and initial the allegations, if any, that he or she determines the member did not commit.  The commander shall then determine an appropriate punishment and complete item 4 of the NGIL Form 60-R, using the model punishment formats established by DMA.  Whenever possible, the commander should impose NJP on the member in person. The commander may also counsel the member at this time concerning the misconduct.  If appropriate, the commander shall refer the member to military or civilian agencies that can assist in resolving any personal problems that may have contributed to the misconduct.  The commander shall then explain appellate rights and procedures to the member, following DMA guidance. The member shall complete item 5 (member's appeal decision) of the NGIL Form 60-R.

 

g)         Appeals of Nonjudicial Punishment

 

1)         General.  A member may appeal an NJP action if he or she considers the punishment to be unjust or disproportionate to the offense. The member may appeal either the findings, the punishment or both.  The member shall appeal through the imposing commander to the next superior commander, or to such other authority designated by the Adjutant General for NJP purposes.  If the appellate authority is the Adjutant General, he or she shall act on the appeal in the cases of officers, warrant officers or enlisted personnel in the grades of E-8 or E-9.  In all other cases, he or she may delegate the power to act on the appeal to the Assistant Adjutant General (Army) or to the Assistant Adjutant General (Air).  All matters to be considered on appeal must be submitted by the member in writing, the member has no right to an oral presentation on appeal, and only one appeal is permissible under NJP proceedings.

 

2)         Procedure for Submitting an Appeal

 

A)        At the time the punishment is announced to the member, he or she shall be informed of his or her right to appeal and shall be directed to state whether he or she is appealing the commander's action.  The member shall indicate his or her appeal decision in item 5 (appeal decision) of the NGIL Form 60-R.  If the member elects to appeal, the member may request 10 calendar days to submit any additional written matters in support of the appeal. The commander may grant an extension of the 10-day period for good cause shown by the member or his or her counsel.  If written matters are not presented to the imposing commander within the prescribed time, the appeal shall be sent to the appellate authority for his or her decision with a statement to that effect.

 

B)        The member is not required to state the reasons for his or her appeal or to submit any written matters. However, if the member elects to submit written matters in support of the appeal, these matters must be presented initially to the imposing commander. They may not be presented directly to the appellate authority.

 

C)        Punishments are not stayed pending final decision on an appeal unless no action is taken within 10 calendar days after the appeal was submitted. In that case, if the member requests, any unexecuted punishment involving restriction or extra duty shall be stayed until action is taken on the appeal.

 

D)        If the member refuses to complete or sign item 5 of the NGIL Form 60-R, that refusal shall not be treated as an appeal.  The commander shall process the NGIL Form 60-R as if the member declined to appeal and shall make the following entry in item 5: "Advised of punishment and appellate rights and member refused to (complete) (sign)."

 

3)         Action by Imposing Commander. The imposing commander may take any action on the appeal that he or she deems appropriate, except that punishments may not be increased on appeal. The commander's action shall be indicated in item 6 (action on appeal) of the NGIL Form 60-R. The commander may suspend, mitigate, remit or set aside any part of the punishment. If the imposing commander grants the full relief requested by the member, the appeal is not forwarded to the appellate authority.  In all other cases, the commander shall forward the appeal to the appellate authority, through the Staff Judge Advocate, along with all written materials considered in imposing the punishment.  The commander may also forward appropriate comments addressing any matters raised by the member in his or her appeal, a statement of the commander's rationale for imposing the punishment, and a recommendation for action on the appeal.

 

4)         Action by Staff Judge Advocate. The Staff Judge Advocate, or designee, shall advise the appellate authority as to the appropriateness of the punishment and whether the proceedings were conducted in accordance with the Illinois Code of Military Justice and this Subpart. The legal opinion may be either oral or written, and shall be documented in item 7 (review of appeal) of the NGIL Form 60-R.

 

5)         Action by Appellate Authority.  Action by the appellate authority shall be entered in item 8 of the NGIL Form 60-R. The appellate authority shall take action expeditiously, normally within 10 calendar days after the appeal was submitted. The appellate authority may conduct an independent inquiry into the case, if the appellate authority so desires, and the appellate authority may exercise the same powers with respect to the punishment as may be exercised by the imposing commander. After the appellate authority takes action, the member shall be promptly notified of the results and shall complete item 9 (member acknowledgment of appeal action) of the NGIL Form 60-R. However, if all punishment is disapproved, the entire action must be set aside and removed from the member's record. A final NJP action cannot consist of "no punishment".

 

h)         Notification by Certified Mail

 

1)         All NJP proceedings shall be conducted in person with the member, whenever possible, to ensure the member understands the proceedings and has a full opportunity to exercise all rights granted under this Subpart.  However, if the commander determines the member is not reasonably available to conduct any portion of the proceedings in person, the member may be notified by certified mail of the following matters:

 

A)        Initiation of NJP proceedings, if the commander or his or her designee determines that personal notification is impractical, and the commander documents the reason for service by mail in item 11 of the NGIL Form 60-R.

 

B)        Additional NJP matters, such as date and time of the personal presentation, the member's punishment, the member's right to appeal, and action taken on the appeal.

 

C)        Supplementary NJP actions under Section 400.2040. However, vacation of suspension proceedings shall be initiated in person unless the commander or his or her designee determines that personal notification is impractical, and the commander documents the reason for service by mail in item 7 of the NGIL Form 62-R (Record of Vacation of Suspended Nonjudicial Punishment).

 

2)         In all of the situations described in subsection (h)(1), the commander shall annotate the appropriate items on the NGIL Forms 60-R, 61-R (Record of Supplementary Nonjudicial Punishment Action) or 62-R showing notification by certified mail. The certified mail receipts shall be forwarded with the applicable form.

 

Section 400.1220  Punishment

 

a)         General.  Whether to impose punishment, and the amount and nature of the punishment, are the sole decisions of the imposing commander.  However, the commander is encouraged to discuss appropriate punishments with his or her Staff Judge Advocate after the SMF member has had an opportunity to present matters in defense, mitigation or extenuation. Commanders are also encouraged to consult with their NCOs and other subordinates on the appropriate type, duration and limits of punishment to be imposed. Additionally, as NCOs are often in the best position to observe a member undergoing punishment, and to evaluate performance and attitude, their views on clemency should be given careful consideration.

 

1)         When forfeiture of pay will be imposed, the commander should consider imposing a forfeiture below the maximum authorized. Maximum forfeitures should be reserved for serious cases or repeat offenders.

 

2)         Unsuspended reduction in grade should only be imposed in the same punishment with forfeiture of pay when the maximum exercise of nonjudicial punishment authority is warranted.

 

b)         Rules for Imposing Punishment.  Unsuspended reduction in grade and forfeitures of pay are effective on the date of imposition, which is the date item 4 of the NGIL Form 60-R is signed by the imposing commander.  All other unsuspended punishments take effect immediately upon notification to the member, unless otherwise stated by the commander in item 4.  In this regard, the commander cannot choose a date earlier than the date he or she signed that item, but he or she may delay the punishment for legitimate reasons (e.g., the member is hospitalized or on authorized emergency leave).  In those cases, the execution of the punishment should begin immediately after the cause of the delay has abated.  Also, if a member to be punished is currently undergoing a punishment involving restriction or extra duties under a prior NJP action, the commander can prescribe an additional punishment of restriction or extra duties to begin after the completion of the earlier punishment.  Maximum punishments are prescribed in Appendix A.

 

1)         Restriction. Restriction may be imposed with or without suspension from duties, and the limits of the restriction shall be announced at the time punishment is imposed.

 

2)         Extra Duties.  Extra duties may be required to be performed at any time and, within the duration of the punishment, for any length of time. However, when extra duties are performed during IDT periods, one day of extra duty shall be counted against each unit training assembly for that day. Extra duties may include the performance of fatigue duty or of any other military duty; however, no extra duty may be imposed that:

 

A)        Constitutes cruel or unusual punishment, or a punishment not sanctioned by the customs of the service (e.g., using the offender as a personal servant);

 

B)        Is a duty normally intended as an honor, such as assignment to a guard of honor;

 

C)        Is required to be performed in a ridiculous or unnecessarily degrading manner (e.g., an order to clean a barracks floor with a toothbrush);

 

D)        Constitutes a safety or health hazard to the offender; or

 

E)        Would demean the member's grade or position.

 

3)         Forfeiture of Pay.  Forfeiture of one day's pay shall, in the case of IDT, constitute the pay for one unit training assembly (UTA; a paid IDT of no less than 4 hours).  Forfeitures of pay may apply to pay accruing on or after the date punishment is imposed and to any pay accrued, but not yet paid, before that date.

 

4)         Reduction in Grade

 

A)        Reduction Authority

 

i)          Members in the grade of E-9 may be reduced by the Assistant Adjutant General for Army or Air, as appropriate, but that reduction shall be effective only upon the written approval of the Adjutant General.

 

ii)         Members in the grades up to and including E-8 may be reduced by a commander in a Brigade or Wing command position, or higher.

 

iii)        Members in the grades up to and including E-6 may be reduced by a commander in a Battalion or Squadron command position, or higher.

 

iv)        Members in the grades up to and including E-4 may be reduced by a commander in a Company or Flight command position, or higher.

 

B)        Date of Rank.  When a member is reduced in grade as a result of an unsuspended reduction, his or her date of rank in the grade to which reduced is the date the punishment of reduction was imposed. If, however, the reduction is suspended either on or after the time the punishment was imposed, or is later set aside or mitigated to forfeiture, the date of rank in the grade held before the punishment was imposed remains unchanged.  For example, if an E-5 has a date of rank of May 1, the member receives nonjudicial punishment on June 1 consisting of a reduction in rank, and the commander subsequently suspends, sets aside or mitigates the reduction on July 1, the date of rank for the restored grade is May 1.

 

C)        Entitlement to Pay.  When a member is restored to a higher pay grade because of a suspension or because a reduction is mitigated to forfeiture, entitlement to pay at the higher grade is effective on the date of the suspension or mitigation, even though an earlier date of rank is assigned.  If, however, a reduction is set aside and all rights, privileges and property are restored, the member concerned will be entitled to pay as though the reduction had never been imposed.

 

D)        Void Reduction.  Any portion of a reduction imposed under NJP beyond the imposing commander's authority to reduce is void and must be set aside; however, if a commander reduces a member below a grade to which the commander is authorized to reduce, and if the circumstances of the case indicate that the commander was authorized and intended to reduce the member at least one grade, a one-grade reduction may be approved.

 

5)         Admonition and Reprimand. Admonitions or reprimands imposed on commissioned or warrant officers must be in writing.  Admonitions or reprimands imposed on enlisted members may be administered orally or in writing.  Written admonitions and reprimands imposed as a punishment may be included on the NGIL Form 60-R or may be written in memorandum format and listed as an attachment to the NGIL Form 60-R.  Oral admonitions and reprimands shall be identified as such in item 4 of the NGIL Form 60-R.

 

c)         Limitations on Punishments

 

1)         Restriction.  Restriction shall not be imposed on or served by members performing IDT.  Restriction may be imposed and served only when the member is at an installation, camp or field-type duty away from home station, or under circumstances in which commuting home on a daily basis is not normally authorized.

 

2)         Combination.  All authorized punishments may be imposed in a single case in the maximum amounts, except that, when restriction and extra duties are combined, the combination may not exceed the maximum imposable for extra duties.

 

d)         Announcement of Punishment.  The results of NJP actions may be announced after punishment is imposed or, if appealed, after final decision on the appeal.  The results of NJP proceedings may include a summary of the offense, rank of the offender, and the punishment imposed, but shall not include the offender's name or Social Security Number (SSN).  The results may be announced orally at the next unit formation, may be posted on the unit bulletin board, or may be included in an appropriate newsletter or publication.  The purpose of announcing punishments is to preclude the perception of unfairness of punishment and to deter similar misconduct by other members.  However, an inconsistent or arbitrary policy regarding the announcement of punishments must be avoided, as that might result in the appearance of vindictiveness or favoritism.

 

Section 400.1225  Suspension, Vacation, Mitigation, Remission and Set Aside of Punishment

 

a)         General. The imposing commander, his or her successor in command, or any superior commander may suspend, mitigate or remit punishment as a means of correcting behavior and rehabilitating the offender. If used correctly, these can be valuable tools in maintaining morale and discipline. This action can be taken on the commander's own initiative, or the SMF member can request the action. These commanders also have the authority to vacate suspended punishments or set aside punishments when appropriate.

 

1)         Successor in Command. For these purposes, the successor in command may be either:

 

A)        The officer who has succeeded to the command or position occupied by the imposing commander, if that officer has authority to impose the punishment involved on the member, and providing the member is still assigned to that command; or

 

B)        The officer authorized to impose the punishment on the member, if the member has been reassigned.

 

2)         Recording of Action. The imposing commander may suspend a punishment when completing item 4 of the NGIL Form 60-R.  Any supplementary action involving suspension, mitigation, remission or set aside shall be recorded on NGIL Form 61-R. Any action involving vacation of a suspended punishment shall be recorded on NGIL Form 62-R.

 

3)         A commander can suspend, mitigate, remit or set aside punishment only if the commander had the authority to impose that punishment.  For example, a company commander cannot suspend, mitigate, remit or set aside a reduction imposed on an E-7.  A commander not empowered to act may, however, recommend that action to the next superior commander authorized to impose the punishment involved.

 

b)         Suspension.  To suspend punishment is to postpone application of all or part of it for a specified probationary period, with the understanding that it will be automatically remitted at the end of that period if the offender does not engage in further misconduct.  Suspension is often warranted for a first offender or when there are persuasive matters in extenuation or mitigation.

 

1)         A commander may, at any time, suspend any part or amount of the imposed punishment that remains unexecuted. Furthermore, an executed punishment of reduction in grade or forfeiture of pay may be suspended, at any time, provided the suspension is accomplished within a period of 4 months after the date of imposition.

 

2)         Punishment may not be suspended for longer than 6 calendar months from the date of the suspension, or beyond an enlistment or the member's expiration of term of service (ETS).  This 6-month limitation on suspensions may or may not be 180 days. For example, a punishment imposed on March 1 may be suspended until August 31, even though this period is 183 days.  The suspension action shall set a specific date when, unless it is vacated sooner, the suspension shall terminate and the punishment shall be automatically remitted without further action.

 

3)         Suspension of a punishment automatically includes a condition that the member does not violate, for the period of the suspension, any punitive articles of the UCMJ, criminal laws of the State of Illinois, or this Subpart. Commanders may specify other conditions as well, but any such conditions must be reasonably related to the offense. The commander must consult with his or her Staff Judge Advocate before imposing conditions.  Furthermore, any additional conditions of suspension must be clearly stated within the punishment endorsement, and they must be capable of being completed during the period of suspension.

 

c)         Vacation of Suspension. A commander may vacate any suspended punishment, provided the punishment is of a type and amount he or she could impose, if the commander determines that the member has committed an offense during the period of suspension or has failed to meet a condition upon which the suspension was based.  Vacation proceedings shall be recorded on NGIL Form 62-R. The action must be initiated before the end of the suspension period.

 

1)         The commander or his or her designee shall personally notify the member of the basis of the proposed vacation, date and sign item 2 of the NGIL Form 62-R when the member is served, and give the member an opportunity to rebut the information on which the proposed vacation is based. If personal notification is impractical because of the member's unauthorized absence or other reason, the member may be notified by certified mail, and the commander shall document the reason for that service in item 7 of the form. The member may consult with counsel prior to submitting a rebuttal. The member does not have to make any statement concerning the allegations, but does not have the same procedural rights granted under Section 400.1220.  The member shall be given the opportunity to present rebuttal matters, in person and/or in writing as determined by the commander, and the commander shall consider any such matters presented.  However, the commander shall schedule the proceedings at his or her discretion, and the member has no right to appeal the commander's decision.

 

2)         A single offense may be the basis for both vacation action and a new NJP proceeding only when the new offense warrants substantial additional punishment.  Also, in a suitable case, the original punishment may be continued in a suspended status and a separate NJP proceeding may be initiated for the new offense.

 

3)         If a reduction in grade is suspended and the suspension is later vacated, the reduction is effective on the date of vacation, but the member's date of rank in the grade to which reduced is the date the reduction was initially imposed. For example, if a member receives NJP on June 1 consisting of a suspended reduction in grade for 6 months, and the commander subsequently vacates the suspension on September 1, the effective date of the reduction is September 1, but the member's new date of rank is June 1.

 

d)         Mitigation. To mitigate punishment is to change it to a less severe punishment in quantity or type; however, the general nature of the punishment must remain the same. For example, restraints on liberty (i.e., restriction or extra duties) may not be mitigated to monetary punishments (i.e., forfeitures of pay), and a forfeiture of pay may be mitigated only to a lesser forfeiture of pay. Mitigation may be appropriate when the offender's subsequent good conduct merits a reduction in severity of the punishment, or when the punishment imposed was disproportionate to the offense or the offender.

 

1)         With the exception of reduction in grade, the power to mitigate exists only with respect to a punishment or portion of the punishment that is unexecuted.

 

2)         A reduction in grade, whether or not executed, can be mitigated to a forfeiture of pay, but not to a lesser reduction or no reduction, provided the action is taken within 4 months after execution of the punishment.

 

3)         Extra duties can be mitigated to restriction, but restriction, being the least severe restraint on liberty, cannot be mitigated to a different form of punishment.  Also, when a restraint on liberty is mitigated, the lesser punishment may not run for a period greater than the remainder of the period for which the punishment was initially imposed. For example, when a person is given 15 days of extra duties, 5 days of this punishment has been served, and the punishment is then mitigated to restriction, the mitigated punishment may not exceed restriction for a period of 10 days.

 

e)         Remission. To remit punishment is to excuse the offender from the unexecuted portion of the punishment, and remission may be appropriate under the same circumstances as for mitigation.  In this regard, an unsuspended reduction is executed on imposition and cannot be remitted, but it may be suspended, mitigated or set aside if appropriate. In addition, the member's death, separation or discharge automatically remits any unexecuted punishment, and a member shall not be involuntarily held beyond his or her ETS to complete any unexecuted punishment.

 

f)         Set Aside.  When a commander determines that a member who was punished, or is being punished, has suffered a "clear injustice", the commander may cancel the punishment and restore the member's rights, privileges or property accordingly.

 

1)         For these purposes, "clear injustice" means that there exists an unwaived legal or factual error that materially prejudices a substantial right of the member.  For example, a clear injustice would exist when information later comes to the commander's attention that casts substantial doubt on the member's guilt or establishes persuasive extenuation for the commission of the offense.

 

2)         A punishment cannot be set aside merely because a member avoids future misconduct, or because the member's subsequent performance of duty has been exemplary, or because the punishment may have a future adverse impact on the retention or promotion potential of the member.

 

3)         Setting aside a punishment in its entirety restores the member to the position he or she was in before the punishment was imposed, as if the nonjudicial punishment action had never been initiated. For example, if an E-5 receives NJP on June 1 consisting of a reduction in grade, and the punishment is set aside on September 1, the date of rank and effective date for the restored grade reverts to that held before reduction, and the member shall be entitled to pay at the E-5 grade for the 3 months he or she was paid at the reduced grade.

 

4)         Action to set aside punishment must be taken within 4 months after execution of the punishment, unless the commander determines unusual circumstances exist. In such a case, the commander must explain those circumstances in item 1b of the NGIL Form 61-R.

 

Section 400.1230  Records of Punishment

 

a)         NGIL Form 60-R:  Record of Nonjudicial Punishment Proceedings.  All NJP actions, including notification, election of rights, imposition of punishment, appeal, Staff Judge Advocate review, and action on appeal, shall be recorded on NGIL Form 60-R.  After the SMF member indicates in item 5 that he or she does not appeal, or after completion of item 9 if the member appeals, a copy of the completed NGIL Form 60-R shall be given to the member. The original of the NGIL Form 60-R, with all attachments and supporting documents (see subsection (f)), shall then be mailed to the Office of the Adjutant General, ATTN: NGIL-JA, at the address specified in Section 400.1205(b)(4). The Office shall review the form for legal sufficiency, then shall distribute the form as indicated in subsections (a)(1) through (5).

 

1)         For Army National Guard (ARNG) members, the original of the NGIL Form 60-R shall be filed in the member's Military Personnel Records Jacket (MPRJ).  For Air National Guard (ANG) members, the original of NGIL Form 60-R shall be filed in the commander's Personnel Information File (PIF).  These originals shall normally be destroyed by the custodian of the file at the end of 2 years from the date of imposition of punishment, unless: 

 

A)        the filing authority directs filing for either a shorter or longer period of time in accordance with applicable service regulations; or

 

B)        the member has received an additional NJP in the interim.  In the latter case, both NJP records shall be retained in the MPRJ or PIF and shall be destroyed at the end of 2 years from the latest date of imposition of punishment, or at the end of the time period determined by the commander in accordance with applicable service regulations.

 

2)         One copy, with attachments and supporting documents, shall be filed with the NGIL-JA for one year from the date punishment was imposed, after which it shall be destroyed. NGIL-JA shall also forward a copy of the form to NGIL-HRO if the member is in an Active Guard Reserve (AGR) status.

 

3)         One copy, with attachments, shall be permanently filed in the member's vault file (ARNG) or State 201 file (ANG).

 

4)         If the punishment affects the member's pay (i.e., an unsuspended reduction in grade or forfeiture of pay), one copy of the NGIL Form 60-R shall be sent to the appropriate ARNG or ANG office that processes that member's military pay records.

 

5)         If the punishment includes an unsuspended reduction in grade, one copy of the NGIL Form 60-R shall be sent to the appropriate reduction authority to process the reduction orders.

 

b)         NGIL Form 61-R:  Record of Supplementary Nonjudicial Punishment Action.  All supplementary actions, except vacation of suspension, shall be recorded on NGIL Form 61-R. Supplementary action is any action taken by an appropriate authority to suspend, mitigate, remit or set aside a punishment after action has been taken on an appeal or the NGIL Form 60-R has been distributed according to subsection (a).  After completion of item 1 on the NGIL Form 61-R, a copy of the completed form shall be given to the member.  The original of the NGIL Form 61-R, with all attachments and supporting documents, shall then be mailed to the Office of the Adjutant General, ATT: NGIL-JA, at the address specified in Section 400.1205(b)(4). The Office shall review the form for legal sufficiency, then shall distribute the form as indicated in subsections (b)(1) through (5).

 

1)         The original of the NGIL Form 61-R shall be filed in the MPRJ for ARNG members or in the commander's PIF for ANG. The NGIL Form 61-R shall be destroyed at the same time as the NGIL Form 60-R that it supplements.

 

2)         One copy, with all attachments and supporting documents, shall be filed at NGIL-JA for one year from the date of the supplementary action, after which it shall be destroyed.  NGIL-JA shall also forward a copy of the form to NGIL-HRO if the member is in an AGR status.

 

3)         One copy, with attachments, shall be permanently filed in the member's vault file (ARNG) or State 201 file (ANG).

 

4)         If the supplementary action affects the member's pay (e.g., set aside of a punishment), one copy of the NGIL Form 61-R and a copy of the initial NGIL Form 60-R shall be sent to the appropriate ARNG or ANG office that processes that member's military pay records.

 

5)         If the supplementary action affects the member's grade (e.g., restoration to a higher grade), then one copy of the NGIL Form 61-R and a copy of the initial NGIL Form 60-R shall be forwarded to the appropriate promotion authority to process the order.

 

c)         NGIL Form 62-R (Record of Vacation of Suspended Nonjudicial Punishment).  Vacation of suspension proceedings shall be recorded on NGIL Form 62-R. After completion of item 4 on the NGIL Form 62-R, a copy of the completed form shall be given to the member.  The original of the NGIL Form 62-R, with all attachments and supporting documents, shall then be mailed to the Office of the Adjutant General, ATTN: NGIL-JA, at the address specified in Section 400.1205(b)(4). The Office shall review the form for legal sufficiency, then shall distribute the form as indicated in subsections (c)(1) through (5).

 

1)         The original of the NGIL Form 62-R shall be filed in the MPRJ for ARNG members or in the commander's PIF for ANG members. The NGIL Form 62-R shall be destroyed at the same time as the NGIL Form 60-R that it supplements.

 

2)         One copy, with all attachments and supporting documents, shall be filed at NGIL-JA for one year from the date of the supplementary action, after which it shall be destroyed. NGIL-JA shall also forward a copy of the form to NGIL-HRO if the member is in an AGR status.

 

3)         One copy, with attachments, shall be permanently filed in the member's vault file (ARNG) or State 201 file (ANG).

 

4)         If the vacation action affects the member's pay (e.g., vacation of a suspended reduction), then one copy of the NGIL Form 62-R and a copy of the initial NGIL Form 60-R shall be sent to the appropriate ARNG or ANG office that processes that member's military pay records.

 

5)         If the vacation action affects the member's grade, then one copy of the NGIL Form 62-R and a copy of the initial NGIL Form 60-R shall be forwarded to the appropriate reduction authority to process the order.

 

d)         Set Aside Actions.  All copies of NGIL Forms 60-R and 61-R reflecting NJP actions that are later set aside in their entirety shall be destroyed, except for the permanent copies filed in the member's vault file (ARNG) or State 201 file (ANG).

 

e)         Effect of Errors.  A NJP proceeding is not legally sufficient if it contains an error that materially prejudices a substantial right of the member.  If such an error exists and cannot be remedied within the same proceeding, the appropriate NJP authority shall set aside the defective action.  A new NJP action may be initiated for the same misconduct, but any punishment imposed as a result of the new proceeding may be no more severe than that originally imposed.  If a material error exists and can be remedied within the same proceeding without prejudicing the member's rights, the commander shall notify the member of the error by endorsement to the form and thoroughly explain the correction to the record.  The member shall sign an acknowledgement and may submit comments. The endorsement and acknowledgement shall become attachments to the form. Administrative or clerical errors, and minor errors that do not affect a substantial right of the member, do not require correction to make the proceedings legally sufficient. These errors may be corrected with pen-and-ink changes initialed by the commander and the member, as appropriate.

 

f)         Contents of Record 

 

1)         The record of NJP consists of the NGIL Forms 60-R, 61-R and 62-R, as applicable, and any of their attachments.  All attachments shall be annotated in item 11 of the NGIL Form 60-R or 62-R in item 7 and shall be sent to NGIL-JA with the record. Attachments include, at a minimum:

 

A)        evidence (see Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)) and other written materials relied on by the imposing commander;

 

B)        statements of offenses;

 

C)        any memorandum of reprimand imposed as punishment;

 

D)        change of commander notification;

 

E)        endorsements correcting errors that required explanation; and

 

F)         written materials considered as a basis for vacating a suspended punishment or submitted by the member in mitigation, extenuation, defense or on appeal.

 

2)         Except for memoranda of reprimand imposed as punishment that shall be filed in the member's personnel file as part of the record, attachments shall be filed at NGIL-JA and shall not be filed in the member's personnel file.

 

g)         Use of Record

 

1)         Records of NJP proceedings may be used as directed by the Adjutant General or as authorized by applicable regulations. Attachments transmitted with the originals or copies of NGIL Forms 60-R, 61-R and 62-R, or when filed with any of these forms, shall be considered to be maintained separately for the purpose of determining the admissibility of the originals or copies of those forms at administrative proceedings.

 

2)         A record of NJP, not otherwise inadmissible, may be admitted at administrative proceedings from any file in which it is properly maintained pursuant to this Subpart.

 

Section 400.1300  Courts of Inquiry

 

a)         Courts of inquiry to investigate any matter of concern to the SMF may be convened by any person authorized to convene a general court-martial, whether or not the persons involved have requested such an inquiry.

 

b)         A court of inquiry consists of 3 or more commissioned officers.  For each court of inquiry, the convening authority shall also appoint counsel for the court.

 

c)         Any person subject to the Code whose conduct is subject to inquiry shall be designated as a party.  Any person subject to the Code 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 (see Section 400.825).

 

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.  (Code Section 135)

 

Section 400.1305  Authority to Act as Notary

 

The signature without seal of any commissioned notary, together with the title of his or her office, is prima facie evidence of the person's authority. (Code Section 136)

 

Section 400.1310  Sections of the Code to be Explained

 

a)         When Sections of the Code will be explained;

 

1)         The Sections of the Code specified in subsection (a)(3) shall be carefully explained to each enlisted member at the time of, or within 30 days after, the member's initial entrance into a duty status with the SMF.

 

2)         The Sections shall be explained again:

 

A)        after the member has completed basic or recruit training; and

 

B)        at the time when the member re-enlists.

 

3)         This subsection (a) applies with respect to Code Sections 2 (persons subject to the Code), 3 (jurisdiction to try certain personnel), 7 through 15 (apprehension, restraint, pretrial punishment, delivery of offenders to civil authorities, and NJP), 25 (composition of courts-martial), 27 (trial and defense counsel), 31 (self-incrimination prohibited), 37 (unlawfully influencing the court), 38 (duties of trial and defense counsel), 55 (cruel and unusual punishment), 77 through 134 (punitive Sections), and 137 through 139 (miscellaneous).

 

b)         The text of the Code and of the regulations or orders prescribed under the Code shall be made available to a member of the SMF, upon request by the member, for the member's personal examination, but the Code is effective and binding upon the SMF as of 1/1/17, and regulations or orders are effective upon their proper promulgation. (Code Section 137)

 

Section 400.1315  Complaints of Wrongs

 

a)         Any member of the SMF who believes himself or herself wronged by a 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.

 

b)         The officer exercising general court-martial jurisdiction shall examine the complaint and take proper measures for redressing the alleged wrong. As soon as possible, that officer shall send to the Adjutant General a true statement of the complaint, along with a description of any proceedings that have occurred.  (Code Section 138)

 

Section 400.1320  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 the person's property has been wrongfully taken by members of the SMF, that person may convene a board to investigate the complaint.  The board shall consist of from one to 3 commissioned officers. For the purpose of this investigation, the board 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, who shall also approve the amount of the assessment. The assessment shall be charged against the pay of the offenders.  The order of the commanding officer authorizing the assessment amount is conclusive instruction for any disbursing officer to make payment to the injured parties of the damages 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 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. (Code Section 139)

 

Section 400.1325  Delegation by the Governor

 

The Governor may delegate any authority vested in the Governor under the Code and provide for the subdelegation of any such authority, except for the power given the Governor by Code Section 22 (convening of a court-martial).  (Code Section 140)

 

Section 400.1330  Payment of Fees, Costs and Expenses

 

a)         The following shall be paid out of the Illinois State Military Justice Fund (see Section 5.875 of the State Finance Act):

 

1)         fees and authorized travel expenses of all witnesses, experts, victims, court reporters and interpreters;

 

2)         fees for the service of process;

 

3)         the costs of collection, apprehension, detention and confinement;

 

4)         and all other necessary expenses of prosecution and the administration of military justice, not otherwise payable by any other source.

 

b)         The State Military Justice Fund is created in the State Treasury. The fund shall be administered by the Adjutant General. Expenses of military justice shall be paid from the Fund in the amounts and manner prescribed by law. The General Assembly may appropriate and have deposited into the Fund or other appropriate State fund such funds as it deems necessary to carry out the purposes of the Code.  (Code Section 141)

 

Section 400.1335  Payment and Disposition of Fines

 

a)         Fines imposed by a military court or through imposition of nonjudicial punishment shall be paid to the Illinois Department of Military Affairs and delivered to the court or imposing officer, or to a person executing their process.  Fines may be collected in the following manner:

 

1)         By cash or money order;

 

2)         By retention of any pay or allowances due or to become due the person fined from any state or the United States; or

 

3)         By garnishment or levy, together with costs, on the wages, goods and chattels of a person delinquent in paying a fine, as provided by law.

 

b)         Any sum so received or retained shall be deposited into the Fund or to whomever the court so directs. (Code Section 142)

 

Section 400.1340  Immunity for Action of Military Courts

 

All persons acting under the provisions of the Code, whether as a member of the military or as a civilian, shall be immune from any personal liability for any of the acts or omissions they did or failed to do as part of their duties under the Code.  (Code Section 144)

 

Section 400.1345  Civilian Crimes Assimilated

 

Any person subject to the Code who commits an offense not enumerated in the Code but that is an offense under the laws of the United States, Illinois, or another state, U.S. commonwealth, territory, possession, or district (i.e., the laws of the jurisdiction), while that person is subject to the jurisdiction of the Code, is guilty of any act or omission that, although not made punishable by any enactment of this State, is punishable if committed or omitted within the jurisdiction of the laws of the jurisdiction. In accordance with Code Section 134, the offense may be charged as an offense under the substantive law of the jurisdiction where the offense was committed, in force at the time of the offense, and shall be punished pursuant to the law of that jurisdiction, subject only to the maximum punishment prescribed by Appendix A.  (Code Section 149)

 

Section 400.APPENDIX A   Table of Maximum Punishments

 

 

Enlisted Personnel

 

Punishment	Imposed by Company or Flight Commander (cannot impose any punishment on E-8 or E-9)	Imposed by Battalion or Squadron/Group Commander (see Section 400.2010(a)(3) for E-8 or E-9)	Imposed by Brigade or Wing Commander or AAG
Reduction
E-1 to E-4	1 Grade	2 Grades	2 Grades
E-5 to E-6	No	1 Grade	1 Grade
E-7 to E-8	No	No	1 Grade
E-9	No	No	1
Forfeiture	4 Days' Pay	6 Days' Pay2	6 Days' Pay2
Reprimand	Yes	Yes	Yes
Extra Duties	7 Days	14 Days3	14 Days3
Restriction	14 Days1	21 Days4 & 5	21 Days4 & 5

 

NOTES:

 

¹    May recommend reduction as part of NJP, but reduction is not effective unless and until approved in writing by the Adjutant General.

 

²   May order forfeiture of 8 days' pay if acting as "next superior commander".

 

³    May impose 21 days extra duties if acting as "next superior commander".

 

⁴    Restriction cannot be imposed unless in a field environment or while performing duty away from home station.

 

⁵    May impose 28 days restriction if acting as "next superior commander".

 

 

Officers and Warrant Officers

 

Punishment	Imposed by Brigade, Group or Wing Commander	Imposed by General Officer
Reduction	No	No
Forfeiture	4 Days' Pay	6 Days' Pay1
Reprimand	Yes	Yes
Extra Duties	No	No
Restriction	14 Days2	21 Days2 & 3

 

NOTES:

 

¹    May order forfeiture of 8 days' pay if acting as "next superior commander".

 

²    Restriction cannot be imposed unless in a field environment or while performing duty away from home station.

 

³    May impose 28 days restriction if acting as "next superior commander".