RCMs: Referral, Service, Amendment, and Withdrawal of Charges

Question 1

What is referral?

Answer 1

The order of a convening authority that charges and specifications against an accused will be tried by a certain type of court-martial.

Question 2

What are the three things needed for charges to be referred?

Answer 2

A convening authority authorized to convene the court-martial;
preferred charges which have been received by the convening authority; and
a court-martial convened by the convening authority.

Question 3

Who is barred from referring charges to a court-martial?

Answer 3

An accuser.

Question 4

What must the convening authority find in order to refer charges to a court-martial?

Answer 4

There is probable cause to believe that an offense triable by court-martial has been committed;
that the accused committed it; and
that the specification alleges an offense.

Question 5

Do the rules of evidence apply to a convening authority determining whether there is probable cause to find an offense has been committed or that the accused committed it?

Answer 5

No.

Question 6

Must a convening authority refer all charges which the evidence can support?

Answer 6

No.

Question 7

What must be done before a convening authority refers charges to a General Court-Martial?

Answer 7

A preliminary hearing must be held; and

The convening authority must consult with a judge advocate and receive their pre-referral advice.

Question 8

What must be done before a convening authority refers charges to a Special Court-Martial?

Answer 8

The convening authority must consult with a judge advocate.

Question 9

How are charges referred by the convening authority?

Answer 9

By personal order of the CA.

Question 10

Where is the special instruction noting that a case is referred as a capital case located?

Answer 10

On the charge sheet.

Question 11

If a case is to be tried as a judge-alone Special Court-Martial (“short-martial”) what must the convening authority do?

Answer 11

The CA must include a special instruction to that effect on the charge sheet.

Question 12

When must the special instruction regarding the case being referred to judge-alone SPCM be noted on the charge sheet?

Answer 12

Before arraignment.

Question 13

How is referral evidenced on a charge sheet?

Answer 13

By the indorsement of the convening authority.

Question 14

Must all copies of the charge sheet be signed by the CA?

Answer 14

No, only the original must be signed by the CA. However, it is good practice for copies to be signed.

Question 15

After what event must an accused consent to the joinder of offenses to a court-martial?

Answer 15

After the accused has been arraigned. The accused must consent to the joinder of offenses to a court-martial to which the accused has already been arraigned. If the accused does not consent, the charges must be referred to a different court-martial.

Question 16

After referral of charges, what must the trial counsel detailed to the case do?

Answer 16

They must serve on the accused a copy of the charge sheet?

Question 17

If the charges on a referred charge sheet are changed post-referral, what must the trial counsel do?

Answer 17

Notify the defense counsel.

Question 18

If the charge sheet is changed post-referral to include new charges, or substantially new allegations, what must the trial counsel do?

Answer 18

They must serve an updated copy of the charge sheet on the accused.

Question 19

Can service of charges be made on the defense counsel in lieu of the accused?

Answer 19

No. The charges must be served on the accused personally.

Question 20

When does trial “commence?”

Answer 20

When the accused is arraigned.

Question 21

When is the soonest an accused can be arraigned, i.e. their trial commence, after service of the charges in a General Court-Martial?

Answer 21

Five days after the date of service of charges on the accused unless waived by the accused.

Question 22

When is the soonest an accused can be arraigned, i.e. their trial commence, after service of the charges in a Special Court-Martial?

Answer 22

Three days after the date of service of charges on the accused unless waived by the accused.

Question 23

What types of changes can a trial counsel make to a charge sheet?

Answer 23

Both major and minor changes.

Question 24

What are considered “major” changes to a charge sheet?

Answer 24

Adding a party, charge, or a substantial matter not fairly included in the preferred charge or specification.

Question 25

What is considered a “minor” change to a charge sheet?

Answer 25

Anything that is not a major change.

Question 26

Before referral, when can major changes be made to the charge sheet?

Answer 26

At any time.

Question 27

After referral to a Special Court-Martial, when can major changes be made to the charges or specifications?

Answer 27

Only when the accused does not object to the changes.

Question 28

If the accused objects to major changes to a charge or specification referred to a Special Court-Martial, how does the major change get added to the charge/specification?

Answer 28

Only by withdrawing the charges, amending them, and then re-referring them to the Special Court-Martial.

Question 29

What is the result of major changes being made to a charge or specification after a preliminary hearing has occurred?

Answer 29

The preliminary hearing may have to be reopened.

Question 30

When can minor changes be made to a charge sheet?

Answer 30

After referral and before arraignment.

Question 31

What happens when the government seeks to make minor changes to the charges/specifications after arraignment?

Answer 31

The government must make a motion to make minor changes to the charges/specifications after arraignment.

Question 32

What determines whether the judge will approve a government motion to make minor changes to the charges/specifications post-arraignment?

Answer 32

Whether a substantial right of the accused will be prejudiced by the change.

Question 33

After what event can no more changes be made to the charges/specifications?

Answer 33

After findings are announced.

Question 34

What is the impact of a scrivener’s error on a charge sheet?

Answer 34

None. The charge need not be sworn again when correcting a scrivener’s error.

Question 35

Changes to the charges/specifications other than scrivener’s errors require what?

Answer 35

That the accuser sign and swear the charges again.

Question 36

All changes to charges should be initialed by whom?

Answer 36

The person making the changes.

Question 37

With whom must the trial counsel consult when making changes to the charges?

Answer 37

The convening authority.

Question 38

When can a convening authority withdraw charges from a court-martial?

Answer 38

Any time before the findings are announced.

Question 39

Can a trial counsel unilaterally withdraw charges?

Answer 39

No. Only the convening authority can withdraw charges.

Question 40

How does a trial counsel withdraw charges?

Answer 40

By lining out the affected charges or specifications, renumbering remaining charges or specifications as necessary, and initialing the changes.

Question 41

Can charges that were withdrawn be re-referred?

Answer 41

Yes, but they must be referred to a different court-martial.

Question 42

What must occur if charges are withdrawn from one court-martial, and then re-referred to another court-martial?

Answer 42

The trial counsel must include in the record of the later court-martial the reasons for the withdrawal and the re-referral.

Question 43

When can charges be withdrawn and then re-referred to a new court-martial?

Answer 43

Before arraignment of the accused at the old court-martial.