Page 329 - Trump Executive Orders 2017-2021

10032 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

finding of guilty under a specification laid under that charge, which sufficiently alleges a
violation of some article of the code; or
(3) For increasing the severity of the sentence unless the sentence prescribed for the
offense is mandatory.
(d) Procedure.
(1) Personnel. The requirements ofR.C.M. 505 and 805 shall apply at post-trial sessions
except that, for good cause, a different military judge may be detailed, subject to R.C.M. 502(c)
and 902.
(2) Record. All post-trial sessions shall be held in open session. The record of the post-trial
sessions shall be prepared, certified, and provided in accordance with R.C.M. 1112 and shall be
included in the record of the prior proceedings.

Rule 1105. Post-trial hearing for person found not guilty only by reason of lack of mental
responsibility
(a) Jn general. The military judge shall conduct a hearing not later than forty days following the
finding that an accused is not guilty only by reason of a lack of mental responsibility.
(b) P.~ychiatric or psychological examination and report. Prior to the hearing, the military
judge or convening authority shall order a psychiatric or psychological examination of the
accused, with the resulting psychiatric or psychological report transmitted to the military judge
for use in the post-trial hearing.
(c) Post-trial hearing.
(1) The accused shall be represented by defense counsel and shall have the opportunity to
testify, present evidence, call witnesses on his or her behalf: and to confront and cross-examine
witnesses who appear at the hearing.
(2) The military judge is not bound by the rules of evidence except with respect to
privileges.
(3) An accused found not guilty only by reason of a lack of mental responsibility of an
offense involving bodily injury to another, or serious damage to the property of another, or
involving a substantial risk of such injury or damage, has the burden of proving by clear and
convincing evidence that his or her release would not create a substantial risk of bodily injury
to another person or serious damage to property of another due to a present mental disease or
defect. With respect to any other offense, the accused has the burden of such proof by a
preponderance of the evidence.
(4) If, after the hearing, the military judge finds the accused has satisfied the standard
specified in paragraph (3), the military judge shall inform the general court-martial convening
authority of this result and the accused shall be released. If, however, the military judge finds
after the hearing that the accused has not satisfied the standard specified in paragraph (3), then
the military judge shall inform the general court-martial convening authority of this result and
that authority may commit the accused to the custody of the Attorney General.

Rule 1106. Matters submitted by the accused
(a) In general. After a sentence is announced in a court-martial, the accused may submit
matters to the convening authority for consideration in the exercise of the convening authority's
powers under R.C.M. 1109 or 1110.
(b) Matters submitted by the accused.
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(1) Subject to paragraph (2), the accused may submit to the convening authority any matters

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