By the authority vested in me as President by the Constitution of the United States of America and by Chapter 47 of Title 10 of the United States Code (Uniform Code of Military Justice), in order to prescribe amendments to the Manual for Courts-Martial, United States, 1984, prescribed by Executive Order No. 12473, as amended by Executive Order No. 12484, Executive Order No. 12550, Executive Order No. 12586, and Executive Order No. 12708, it is hereby ordered as follows:
Section 1. Part II of the Manual for Courts-Martial, United States, 1984, is amended as follows:
a. R.C.M. 405(g)(1)(A) is amended to read as follows:
‘‘(A) Witnesses. Except, as provided in subsection (g)(4)(A) of this rule, any witness whose testimony would be relevant to the investigation and not cumulative shall be produced if reasonably available. This includes witnesses requested by the accused, if the request is timely. A witness is 'reasonably available' when the witness is located within 100 miles of the situs of the investigation and the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on military operations of obtaining the witness' appearance. A witness who is unavailable under Mil. R. Evid. 804(a)(1)-(6) is not 'reasonably available.'’’.
b. R.C.M. 405(g)(4)(B) is amended --
(1) in clause (iii) to read as follows:
‘‘(iii) Prior testimony under oath;’’;
(2) in clause (iv) to read as follows:
‘‘(iv) Depositions of that witness; and’’; and
(3) by adding the following clause at the end thereof:
‘‘(v) In time of war, unsworn statements.’’.
c. R.C.M. 701(a)(3)(B) is amended to read as follows:
‘‘(B) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when trial counsel has received timely notice under subsection (b)(1) or (2) of this rule.’’.
d. R.C.M. 701(b) is amended --
(1) in subparagraph (1) to read as follows:
‘‘(1) Names of witnesses and statements.
(A) Before the beginning of trial on the merits, the defense shall notify the trial counsel of the names and addresses of all witnesses, other than the accused, whom the defense intends to call during the defense case in chief, and provide all sworn or signed statements known by the defense to have been made by such witnesses in connection with the case.
(B) Upon request of the trial counsel, the defense shall also
(1) provide the trial counsel with names and addresses of any witnesses whom the defense intends to call at the presentencing proceedings under R.C.M. 10O1(c); and
(2) permit the trial counsel to inspect any written material that will be presented by the defense at the presentencing proceeding.’’;
(2) in subparagraph (2) to read as follows:
‘‘(2) Notice of certain defenses. The defense shall notify the trial counsel before the beiginning of trial on the merits of its intent to offer the defense of alibi, innocent ingestion, or lack of mental responsibility, or its intent to introduce expert testimony as to the accused's mental condition. Such notice by the defense shall disclose, in the case of an alibi defense, the place or places at which the defense claims the accused to have been at the time of the alleged offense, and, in the case of an innocent ingestion defense, the place or places where, and the circumstances under which the defense claims the accused innocently ingested the substance in question, and the names and addresses of the witness upon whom the accused intends to rely to establish any such defenses.’’; and
(3) in subparagraph (5) to read as follows:
‘‘(5) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under subsection (b) (2) of this rule is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made in connection with such intention is not, in any court-martial, admissible against the accused who gave notice of the intention.’’.
e. R.C.M. 705(c) (2) is amended by deleting the first sentence and substituting therefor the following sentence:
‘‘(2) Permissible terms or conditions. Subject to subsection (c)(1)(A) of this rule, subsection (c)(1)(B) of this rule does not prohibit either party from proposing the following additional conditions:’’.
f. R.C.M. 705(d) is amended --
(1) by deleting subparagraph (1);
(2) by redesignating subparngraph (2) as subparagraph (1) and amending it to read as follows: