Chapter IX · Trial Procedures Through Findings
R.C.M. 918. Finding
2024 Manual for Courts-Martial, United States
See all changes(a) General findings. The general findings of a court-martial state whether the accused is guilty of each charge and specification. If two or more accused are tried together, separate findings as to each shall be made.
(1) As to a specification. General findings as to a specification may be:
(A) guilty;
(B) not guilty of an offense as charged, but guilty of a lesser included offense;
(C) guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions, if any;
(D) not guilty only by reason of lack of mental responsibility; or
(E) not guilty. Exceptions and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it.
Discussion
Exceptions and substitutions. One or more words or figures may be excepted from a specification and, when necessary, others substituted, if the remaining language of the specification, with or without substitutions, states an offense by the accused which is punishable by court-martial. Changing the date or place of the offense may, but does not necessarily, change the nature or identity of an offense. If A and B are joint accused and A is convicted but B is acquitted of the offense charged, A should be found guilty by excepting the name of B from the specification as well as any other words indicating the offense was a joint one. Lesser included offenses. If the evidence fails to prove the offense charged but does prove an offense necessarily included in the offense charged, the factfinder may find the accused not guilty of the offense charged but guilty of the lesser included offense. See paragraph 3 of Part IV and Appendix 12A concerning lesser included offenses. Offenses arising from the same act or transaction . The accused may be found guilty of two or more offenses arising from the same act or transaction, whether or not the offenses are separately punishable. But see R.C.M. 906(b)(12) and 907(b)(3)(B).
(2) As to a charge. General findings as to a charge may be:
(A) guilty;
(B) not guilty, but guilty of a violation of Article _________;
(C) not guilty only by reason of lack of mental responsibility; or
(D) not guilty.
Discussion
Where there are two or more specifications under one charge, conviction of any of those specifications requires a finding of guilty of the corresponding charge. Under such circumstances any findings of not guilty as to the other specifications do not affect that charge. If the accused is found guilty of one specification and of a lesser included offense prohibited by a different Article as to another specification under the same charge, the findings as to the corresponding charge should be: “Of the Charge as to specification 1: Guilty; as to specification 2: not guilty, but guilty of _____________, a violation of Article __________.” An attempt should be found as a violation of Article 80 unless the attempt is punishable under Articles 85, 94, 100, 103a, 103b, 119a, or 128, in which case it should be found as a violation of that Article. A court-martial may not find an offense as a violation of an article under which it was not charged solely for the purpose of increasing the authorized punishment or for the purpose of adjudging less than the prescribed mandatory punishment.
(b) Special findings. In a trial by court-martial composed of military judge alone, the military judge shall make special findings upon request by any party. Special findings may be requested only as to matters of fact reasonably in issue as to an offense and need be made only as to offenses of which the accused was found guilty. Special findings may be requested at any time before general findings are announced. Only one set of special findings may be requested by a party in a case. If the request is for findings on specific matters, the military judge may require that the request be written. Special findings may be entered orally on the record at the court-martial or in writing during or after the court-martial, but in any event shall be made before entry of judgment and included in the record of trial.
Discussion
Special findings ordinarily include findings as to the elements of the offenses of which the accused has been found guilty, and any affirmative defense relating thereto. See also R.C.M. 905(d); Mil. R. Evid. 304(f)(5), 311(d)(7), and 321(d)(7) concerning other findings to be made by the military judge. Members may not make special findings. Special findings do not include, for example, the members’ deliberation and voting on aggravating factors in a capital case under RCM 1004(c), or on the defense of lack of mental responsibility under R.C.M. 921(c)(4).
(c) Basis of findings. Findings may be based on direct or circumstantial evidence. Only matters properly before the court-martial on the merits of the case may be considered. A finding of guilty of any offense may be reached only when the factfinder is satisfied that guilt has been proved beyond a reasonable doubt.
Discussion
“Direct evidence” is evidence which tends directly to prove or disprove a fact in issue (for example, an element of the offense charged). “Circumstantial evidence” is evidence which tends directly to prove not a fact in issue but some other fact or circumstance from which, either alone or together with other facts or circumstances, one may reasonably infer the existence or non-existence of a fact in issue. There is no general rule for determining or comparing the weight to be given to direct or circumstantial evidence. A reasonable doubt is a doubt based on reason and common sense. A reasonable doubt is not mere conjecture; it is an honest, conscientious doubt suggested by the evidence, or lack of it, in the case. An absolute or mathematical certainty is not required. The rule as to reasonable doubt extends to every element of the offense. It is not necessary that each particular fact advanced by the prosecution which is not an element be proved beyond a reasonable doubt. The factfinder should consider the inherent probability or improbability of the evidence, using common sense and knowledge of human nature, and should weigh the credibility of witnesses. A fact finder may properly believe one witness and disbelieve others whose testimony conflicts with that of the one. A factfinder may believe part of the testimony of a witness and disbelieve other parts.