of the convening authority with respect to the sentence adjudged on a rehearing. See 89c (7) (b) and 1106 for such action on the sentence adjudged upon a new trial.

(2) Other trials. The term "other trial" refers to another trial of a case in which the original proceedings were declared invalid because of lack of jurisdiction (8) or failure of the charges to allege any offense under the code (686). The other trial of a case is subject to the sentence rules provided for rehearings in (1) above, except that no sentence limitations apply if the original trial was invalid because a summary or special court-martial improperly tried an offense involving a mandatory punishment or one otherwise considered capital. See 15a and 16a.

Chapter XVI

RECORDS OF TRIAL

GENERAL COURTS-MARTIAL-INFERIOR COURTS-MARTIAL

82. GENERAL COURTS-MARTIAL. a. Responsibility for preparation. Each general court-martial shall keep a separate record of the proceedings of the trial of each case brought before it. The record is prepared by the trial counsel under the direction of the court, but the persons authenticating the record are responsible for its accuracy. See Articles 38 (a) and 54(a). It is immaterial to the sufficiency of a record whether it was kept or written by the trial counsel or by a reporter acting under his direction.

If practicable, the trial counsel will retain or cause to be retained any stenographic or other notes or any mechanical or electronic recordings from which the record of trial was prepared for such a period as may be prescribed. in appropriate regulations.

b. Contents. (1) General. The record of the proceedings in each case will be separate and complete in itself and independent of any other document. The record will show all the essential jurisdictional facts. It will set forth a verbatim transcript of all proceedings had in the open sessions of the court, hearings held out of the presence of the members, and any proceedings in which the law officer appeared before the court in closed session to put the findings in proper form. See 74f(1) and Article 39. If testimony is given through an interpreter, the record will so state. When a trial is terminated before findings or sentence, the record of trial will show the proceedings up to the time of the termination. For details of contents and certain exceptions to the foregoing rules, see appendix 9. (2) Matter stricken from the record. Although not considered by the court as evidence, any remarks or testimony ordered to be stricken or disregarded will nevertheless be fully recorded.

(3) Record of revision proceedings. When a record is amended in revision proceedings, the record of the proceedings in revision will show specifically, ordinarily by page and line, the part of the original record that is changed and the changes made. In such a case, no physical change will be made in the original record. See 80d and appendix 8c.

(4) Arguments and briefs. All oral arguments and statements of counsel made during the trial shall be set forth verbatim in the record. If the speed of an oral argument is such that the reporter is unable to record it verbatim, the law officer should direct counsel either to reduce the speed of his argument or to submit the argument in writing. A written brief or statement of counsel may be read to the court if appropriate and thereafter attached to the record as an exhibit.

(5) Appendages. Accompanying the original record-securely bound together will be the original charge sheet and, if not used as exhibits or properly disposed of otherwise, the other papers which accompanied the charges when referred for trial, including the report of investigation under Article 32 and, if the trial was a rehearing or new or other trial of the case, the record of the former hearing or hearings.

The following matters will, in an appropriate case, be bound into the record immediately following the exhibits: Recommendations and other papers relative to clemency (77a); offered exhibits which were excluded as not admissible in evidence (54d); proposed instructions and any arguments made thereon (73d); the certificate of a medical officer as to the physical condition of an accused who has been sentenced to confinement on diminished rations or on bread and water (125).

Copies of vouchers for the payment of reporters or witnesses need not be attached to the record.

c. Copies. For instructions as to the preparation of copies of the record, see 496 (2) and appendix 9f. All copies of the record except those delivered to the accused will be attached to the original record of trial when it is forwarded to the convening authority.

d. Security classification. When the record contains information which is required to be classified by the security regulations of the armed force concerned, the trial counsel will take appropriate action in accordance with pertinent regulations to assign a proper security classification to the record. However, convening authorities, staff judge advocates, and legal officers will be on the alert to downgrade or declassify a record of trial which does not contain data requiring security protection. If the papers accompanying the record of trial include classified matter which is not material to the inquiry, this matter should be withdrawn from the papers to be bound with the record if the withdrawal will permit downgrading or declassification of the record. If the accompanying papers include classified matter which is material to the inquiry, action should be taken to have this matter declassified or downgraded when that action is possible and will permit downgrading or declassification of the record.

e. Correction of record. After the record has been transcribed and before it is authenticated, the trial counsel should examine it carefully for errors or omissions. If any are discovered, he should make and initial those changes which are necessary to make the record show the true proceedings. If major corrections are necessary, he should direct the reporter to rewrite the record or the part of it that is defective. Changes may not be made by the trial counsel after the record is authenticated.

When undue delay will not result, the trial counsel should permit the defense counsel to examine the record before it is forwarded to the convening authority. A suitable notation that this examination has been accomplished by the defense counsel should be included in the record, preferably on the page bearing the authentication. See appendix 9c for form. If the defense counsel discovers errors or omissions in the record, he should suggest to the trial counsel appropriate changes to make the record show the true proceedings. If the trial counsel does not concur with the defense counsel as to a suggested

change, or if the record has already been authenticated, the trial counsel should bring the suggestions to the attention of those who authenticated the record. At any time before the record is forwarded to the convening authority, the persons who authenticate the record may change it to make it show the true proceedings. Those changes, as well as any changes made by the trial counsel, should be initialed by the persons who authenticate the record.

f. Authentication. The record in each case shall be authenticated by the signatures of the president and law officer who were actually present at the conclusion of the proceedings. If, after trial, either of the persons who served in those capacities is unable to authenticate because of death, disability, or absence, the record will be signed by the one of them who is available to authenticate and by a member of the court who was present at the conclusion of the proceedings. If both the persons who served in those capacities are unable to authenticate because of death, disability, or absence, the record will be signed by two members of the court who were present at the conclusion of the proceedings. When some one other than the president or law officer authenticates, the reason will be stated. See appendix 96 for forms of authentication.

g. Disposition. (1) Delivery to accused. Subject to the exceptions noted below with respect to security matters, the trial counsel will arrange for the accused to be furnished with a copy of the record of trial and all documentary exhibits received in evidence as soon as the record is authenticated. See 54d 143a (2), appendix 9f, and Article 54 (c). The receipt of the accused for the copy of the record furnished him will be attached to the original record of trial. If it is impracticable to secure a receipt from the accused before the original record is forwarded to the convening authority, the trial counsel will attach to the original record a certificate to the effect that a copy of the record has been transmitted to the accused-giving the means of transmission and the addressee. In this case, the receipt of the accused will be forwarded to the convening authority as soon as it is obtained.

The accused is also entitled to an authenticated copy of a record in revision to the same extent that he is to a copy of the original proceedings.

If the copy of the record prepared for the accused contains matter requiring security protection, the trial counsel, unless otherwise directed by the convening authority, will forward the accused's copy to the convening authority. The latter will excise or withdraw from the accused's copy any matter requiring security protection (82d) and will, thereafter, cause the expurgated copy to be delivered to the accused together with a certificate to the effect that certain matter has been deleted or withdrawn from the accused's copy of the record for reasons of national security, and that the original record of trial may be inspected in the files of the Judge Advocate General of the appropriate Department under such regulations as may be prescribed by the Secretary concerned. The certificate will list:

(a) The pages from which matter has been deleted;

(b) The pages which have been removed in their entirety; and

(c) The exhibits which have been withdrawn.

A copy of this certificate, together with a statement signed by the accused acknowledging receipt of an expurgated copy of the record of trial, or a certificate of delivery of the expurgated copy, shall be attached to the original record of trial.

(2) Forwarding to convening authority. The original record and accompanying papers and the necessary copies of the record will be forwarded to the convening authority or to his successor in command or, if the court was convened by the President of the United States or the Secretary of a Department, to the Judge Advocate General of the Department concerned. See Articles 17(b) and 60.

h. Loss of record. When a record of trial is lost or destroyed, a new record will be prepared if practicable and will become the record of trial in the case. The new record will, however, be prepared only when the available original notes or other sources enable the preparation of a complete and substantially accurate record of the case. In any case of loss of a record before action by the convening authority, the trial counsel or other proper person will fully inform the convening authority as to the facts and as to the action, if any, taken.

i. Loss of notes or recordings of the proceedings. If the notes or recordings of the proceedings in court are lost before the record of trial has been prepared, the convening authority will be fully informed of the facts. Thereafter, unless the convening authority directs otherwise, a record of trial will be prepared following, as nearly as practicable, the form of record prescribed in appendices 8 and 9. The record will be authenticated and disposed of as provided in 82f and g. The fact that such a record does not contain a verbatim transcript of all the proceedings may deprive the accused of his right under the code to a full appellate review of his case and, thus, be a proper reason for disapproving any sentence adjudged, but it shall not preclude the convening authority from ordering a rehearing as to any offense of which the accused was found guilty if the finding is supported by the summary of the evidence contained in the record. In this connection, see 92.

83. INFERIOR COURTS-MARTIAL. a. Special court-martial records involving bad-conduct discharge. Subject to the exceptions set forth in appendices 8 and 9, a record of trial by special court-martial in which a bad-conduct discharge is adjudged will contain a verbatim transcript of all proceedings in open session. It will follow the form in appendix 9 and will be prepared and disposed of in accordance with the rules prescribed in 82 for a record of trial by general court-martial. As to authentication, see appendix 96 (2).

b. Special court-martial records not involving bad-conduct discharge. When a bad-conduct discharge is not adjudged, a record of trial by special court-martial need contain only a summarized report of the testimony, objections, and other proceedings. However, in such a case, if a reporter was detailed and actually served in that capacity throughout the trial, the convening or higher authority may direct that the proceedings be reported verbatim as prescribed by 83a and appendices 8 and 9. Unless otherwise provided by regulations of the Secretary concerned, the notes or recordings of the original proceedings need not be retained after the record of trial has been authenticated. The form of the summarized record of trial and instructions as to its preparation, authentication, and disposition will be as prescribed by the Secretary of a Department.

c. Summary courts-martial. For the preparation, authentication, and disposition of records of trial by summary courts-martial, see 79e.