Certification of record of trial; general

and special courts-martial (a) In general. Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be independent of any other document and shall include a recording of the court-martial. Court-martial proceedings may be recorded by videotape, audiotape, or other technology from which sound images may be reproduced to accurately depict the court-martial. (b) Contents of the record of trial. The record of trial contains the court-martial proceedings, and includes any evidence or exhibits considered by the court- martial in determining the findings or sentence. The record of trial in every general and special court- martial shall include: (1) A substantially verbatim recording of the court- martial proceedings except sessions closed for deliberations and voting; (2) The original charge sheet or a duplicate; (3) A copy of the convening order and any amending order; (4) The request, if any, for trial by military judge alone; the accused’s election, if any, of members under R.C.M. 903; and, when applicable, any statement by the convening authority required under R.C.M. 503(a)(2); (5) The election, if any, for application of sentencing rules as in effect on or after January 1, 2019 under R.C.M. 902A; and the election, if any, for sentencing by members in lieu of sentencing by military judge under R.C.M. 1002(b); (6) Exhibits, or, if permitted by the military judge, copies, photographs, or descriptions of any exhibits that were received in evidence and any appellate exhibits; (7) The Statement of Trial Results; (8) Any action by the convening authority under R.C.M. 1109 or 1110; and (9) The judgment entered into the record by the military judge. (c) Certification. A court reporter shall prepare and certify that the record of trial includes all items required under subsection (b). If the court reporter cannot certify the record of trial because of the court reporter’s death, disability, or absence, the military judge shall certify the record of trial. (1) Timing of certification. The record of trial shall be certified as soon as practicable after the judgment has been entered into the record. If proceedings. (2) Additional additional proceedings are held after the court reporter certifies the record, a record of those proceedings shall be included in the record of trial, and a court reporter shall prepare a supplemental certification. (d) Loss of record, incomplete record, and correction of record. (1) If the certified record of trial is lost or destroyed, a court reporter shall, if practicable, certify another record of trial. (2) A record of trial is complete if it complies with the requirements of subsection (b). If the record is incomplete or defective, a court reporter or any party may raise the matter to the military judge for appropriate corrective action. A record of trial found to be incomplete or defective before or after certification may be corrected to make it accurate. A superior competent authority may return a record of trial to the military judge for correction under this rule. The military judge shall give notice of the proposed correction to all parties and permit them to examine and respond to the proposed correction. All parties shall be given reasonable access to any court reporter notes or recordings of the proceedings. (3) The military judge may take corrective action by any of the following means— (A) reconstructing the portion of the record affected; (B) dismissing affected specifications; (C) reducing the sentence of the accused; or (D) if the error was raised by motion or on appeal by the defense, declaring a mistrial as to the affected specifications. (e) Copies of the record of trial. (1) Accused and victim. Any victim entitled to a copy of the certified record of trial shall be notified of the opportunity to receive a copy of the certified record of trial. Following certification of the record of trial under subsection (c), in every general and special court- martial, subject to paragraphs (3) and (4), a court reporter shall, in accordance with regulations issued by the Secretary concerned, provide a copy of the certified record of trial free of charge to— (A) The accused; (B) The victim of an offense of which the accused the testified during the victim if was charged II-115 proceedings; and have been entirely deleted; and (C) Any victim named in a specification of which the accused was charged, upon request, without regard to the findings of the court-martial. it If impracticable. (2) Providing copy is impracticable to provide the record of trial to an individual entitled to receive a copy under paragraph (1) because of the unauthorized absence of the individual, or military exigency, or if the individual so requests on the record at the court-martial or in writing, the individual’s copy of the record shall be forwarded to the individual’s counsel, if any. (3) Sealed exhibits; classified information; closed sessions. Any copy of the record of trial provided to an individual under paragraph (1) shall not contain classified information, information under seal, or recordings of closed sessions of the court-martial, and shall be handled as follows: (A) Classified information. (i) Forwarding to convening authority. If the copy of the record of trial prepared for an individual under this rule contains classified information, trial counsel, unless directed otherwise by the convening authority, shall forward the individual’s copy to the convening authority, before it is provided to the individual. (ii) Responsibility of the convening authority. The convening authority shall: (I) cause any classified information to be deleted or withdrawn from the individual’s copy of the record of trial; (II) cause a certificate that classified information has been deleted or withdrawn to be attached to the record of trial; and indicating (III) cause the expurgated copy of the record of trial and the attached certificate regarding classified information to be provided to the individual as provided in subparagraphs (1)(A), (B), and (C). (iii) Contents of certificate. The certificate regarding deleted or withdrawn classified information shall indicate: (I) that the original record of trial may be inspected in the Office of the Judge Advocate General under such regulations as the Secretary concerned may prescribe; (II) the locations in the record of trial from which matter has been deleted; (IV) the exhibits which have been withdrawn. (B) Sealed exhibits and closed sessions. The court reporter shall delete or withdraw from an individual’s copy of the record of trial— (i) any matter ordered sealed by the military judge under R.C.M. 1113; and (ii) any recording or transcript of a session that was ordered closed by the military judge, to include closed sessions held pursuant to Mil. R. Evid. 412, 513, and 514. (4) Portions of the record protected by the Privacy Act. Any copy of the record of trial provided to a victim under paragraph (1) shall not contain any portion of the record the release of which would unlawfully violate the privacy interests of any person other than that victim, to include those privacy interests recognized by 5 U.S.C. § 552a, the Privacy Act of 1974. (5) Additional copies. The convening or higher authority may direct that additional copies of the record of trial of any general or special court-martial be prepared. (f) Attachments for appellate review. In accordance the Secretary with concerned, a court reporter shall attach the following matters to the record before the certified record of trial is forwarded to the office of the Judge Advocate General for appellate review: (1) If not used as exhibits— regulations prescribed by (A) The preliminary hearing report under Article 32, if any; (B) The pretrial advice under Article 34, if any; (C) If the trial was a rehearing or new or other trial of the case, the record of any former hearings; and (D) Written special findings, if any, by the military judge; (2) Exhibits or, with the permission of the military judge, copies, photographs, or descriptions of any exhibits which were marked for and referred to on the record but not received in evidence; (3) Any matter filed by the accused or victim under R.C.M. 1106 or 1106A, or any written waiver of the right to submit such matters; (4) Any deferment request and the action on it; (5) Conditions of suspension, if any, and proof of service on probationer under R.C.M. 1107; (III) the locations in the record of trial which (6) Any waiver or withdrawal of appellate review II-116 under R.C.M. 1115; (7) Records of any proceedings in connection with a vacation of suspension of the sentence under R.C.M. 1108; (8) Any transcription of proceedings created pursuant to R.C.M. 1114; and court-martial the (9) Any redacted materials. (g) Security classification. If the record of trial contains matters that must be classified under applicable security regulations, trial counsel shall cause a proper security classification to be assigned to the record of trial and on each page thereof on which classified material appears. for