RCMs: Trial Procedures Through Findings Flashcards
Can accused officers request the members of their court-martial be up to one-third enlisted?
No. Only enlisted can request that there be enlisted members on their panel.
If an accused makes no forum selection, what occurs?
The accused will be tried by a court-martial comprised of members and a military judge.
When does the military judge inquire about the accused’s forum selection?
Before assembly of the court-martial.
When can an accused withdraw a request for a specific panel composition?
Prior to the end of the Art. 39(a) session, or if there is no Art. 39(a) session, any time before assembly.
When can an accused withdraw a request for a judge-alone trial?
Any time before it is accepted, or if it has already been accepted, the accused may withdraw from it if a new military judge is detailed.
When is an accused asked to plead?
At the arraignment.
When is the arraignment completed?
When the accused is asked to plead.
Is the entry of pleas a part of the arraignment?
No
Some motions/requests/objections/defenses must be made prior to the entry of pleas. What are they?
Defenses or objections based on defects in the preferral, forwarding, or referral of charges.
Defenses or objections based on defects in the preliminary hearing.
Defenses or objections based on defects in the charges and specifications.
Motions to suppress evidence.
Motions for discovery or production of witnesses or evidence.
Motions for severance of charges or accused.
Objections based on denial of request for individual military counsel or for retention of detailed defense counsel.
What is a motion?
A request to the military judge for particular relief.
What is the preferred medium of a motion?
Oral. Motions may be written at the discretion of the judge.
What must be contained in a motion?
The grounds on which it is made; and
The ruling or relief sought.
What controls, a motion’s substance or form/designation?
The substance.
What is the standard of proof on any factual issue the resolution of which is necessary to decide a motion?
Preponderance of the evidence.
Who holds the burden of persuasion on any factual issue the the resolution of which is necessary to decide a motion?
Unless otherwise stated, the moving party.
A motion made before pleas must be determined when?
Before pleas are entered.
When factual issues are involved in determining a motion, what must the judge do?
The judge must state the essential findings of fact on the record.
Failure to raise defenses or objections or to make requests or motions which must be made prior to the entry of pleas results in what?
A forfeiture of the defense or objection.
When may a judge permit the parties to make a motion, objection, defense or request outside the normal timelines?
For good cause.
Aside from motions/objections/defenses/requests that must be filed prior to pleas, when must motions, requests, defenses or objections be made?
Before the adjournment of the court-martial.
When can a motion to dismiss for lack of jurisdiction or failure to state an offense be made?
At any time.
At what point can a judge no longer reconsider any ruling?
At the entry of judgement.
When can a written motion be submitted to a military judge?
After referral.
Who may request oral argument on a motion?
Either party.
To whom should a written motion be served?
All other parties. The motion must also be submitted to the judge. So really all parties and judge.
If a motion is made pre-trial to the convening authority, and the convening authority denies it, what can the moving party do?
Wait until the proper time to make the motion to the military judge.
What is a Motion for Appropriate Relief?
A request for a ruling to cure a defect which deprives a party of a right or hinders a party from preparing for trial or presenting its case.
What types of remedies may be requested in a motion for appropriate relief?
Continuances
Include a record of denial of IMC or civilian counsel in the record of trial.
Correction of defects in the Art. 32 preliminary hearing or pretrial advice.
Amendment of charges or specifications.
Severance of a duplicitous specification into two or more specifications.
Request for a bill of particulars.
Request for discovery and production of evidence and witnesses.
Relief from pretrial confinement.
Severance of multiple accused.
Severance of offenses.
Change of place of trial.
Unreasonable multiplication of charges.
Preliminary rulings on the admissibility of evidence.
Motions related to mental capacity or responsibility of the accused.
What is the standard for determining whether a continuance should be granted?
Reasonable cause.
How long can a continuance be for?
For as long as is just.
What are some reasons for requesting a continuance?
Insufficient time to prepare for trial, unavailability of an essential witness, illness of an accused, counsel, judge, or member. (This list is not exhaustive).
When a specification is amended after an accused has already entered a plea to it, what is the result?
The accused should enter a new plea to the amended charge.
How many offenses can a specification state?
Only one. Ever.
What is a duplicitous specification?
A specification which states two or more offenses under the same specification.
Is a lesser included offense considered a separate offense for the purposes of duplicity?
No.
What is the remedy for a duplicitous specification?
Severance of the specification into two or more specifications.
What is the purpose of a bill of particulars?
To inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification is too vague and indefinite for such purposes.
When will a motion for appropriate relief to sever multiple accused be approved?
When it appears that an accused or the government is prejudiced by a joint or common trial, i.e. good cause is shown.
When will a motion for appropriate relief for severance of offenses be granted?
When it will prevent manifest injustice.
When will a motion for appropriate relief for unreasonable multiplication of charges be granted?
Where charges that arise from substantially the same transaction, while not legally multiplicitous, are unreasonably multiplied as to the findings.
What is the remedy for unreasonable multiplication of charges?
Dismissal of the lesser offenses or merger of the offenses into one specification.
What is a motion to dismiss?
A request to terminate further proceedings as to one or more charges and specifications on grounds capable of resolution without trial of the general issue of guilt.
What are the two types of grounds on which a motion to dismiss can be based on?
Waivable grounds, unwaivable grounds, and permissible grounds.
What are the unwaivable grounds on which a motion to dismiss may be based on?
Lack of jurisdiction to try the accused.
What are grounds on which a motion to dismiss may be based that are waivable by the accused?
Dismissals required under RCM 707 (speedy trial violations).
The statute of limitations has run on an offense.
The accused has already been tried by court-martial (presentation of the evidence has begun in a judge-alone trial OR the members have been impaneled in a members trial) or a federal court for the same offense.
Prosecution is barred by a pardon from the president, immunity of the accused, or prior punishment has already been initiated under Article 13 or 15.
The specification fails to state an offense.
What is the general statute of limitations for most UCMJ offenses?
Five years. The officer exercising summary court-martial jurisdiction must receive sworn charges within five years of the offense occurring.
What are the permissible grounds for making a motion to dismiss?
The charge or specification is defective such that it misleads the accused and in the interests of justice, trial should continue on the other charges and specifications; and
Multiplicity of offenses.
When is a charge multiplicitous?
If the proof of that charge also proves every element of another charge.
When is the most appropriate time to dismiss a charge for being multiplicitous?
After findings have been reached, since the findings determine whether all the elements of one offense are also those of another charged offense.
What kinds of rulings or orders are capable of being appealed by the government?
Rulings/orders which terminate the proceedings with respect to a charge or specification.
Orders/rulings which exclude evidence that is substantial proof of a fact material in the proceedings.
Orders/rulings which order the disclosure of, or impose sanctions for nondisclosure of, classified information.
May the government appeal a ruling or order that is, or amounts to, a finding of not guilty made by a military judge?
Generally, no.
When can the government appeal a ruling or order which is, or amounts to, a finding of not guilty made by a military judge?
When the ruling or order is entered by the judge following a finding of guilty by the members of the court-martial.
How long does the government have in order to file a notice of appeal of a ruling or order which is capable of being appealed by the government?
72 hours of the issuing of the order or ruling.
What must a person be capable of doing in order to be considered competent to stand trial?
They must be capable of understanding the nature of the proceedings against them or to conduct or cooperate intelligently in the defense of the case.
An accused is determined to be mentally incompetent to stand trial. What can the convenining authority do?
The CA can either agree with the conclusion of the board, or they can disagree with the conclusion of the board and refer charges against the accused.
If a convening authority agrees with the results of the board which determines the mental competency of the accused, what should they do?
They must forward the charges to the general court-martial convening authority for determination as to the disposition of the charges.
What can the GCMCA do if they are forwarded charges from a subordinate convening authority because the subordinate agreed with a finding of a board that an accused is not competent to stand trial?
They can choose to refer charges against the accused, or agree with the findings of the board and forward the accused to the custody of the U.S. Attorney General.
Aside from a board, when can the accused’s mental capacity be determined?
After referral, by the military judge either by motion of the parties or sua sponte.
What is the standard of proof in determining whether the accused is suffering from a mental defect or disease?
Preponderance of the evidence.
In what ways can an accused plead?
Guilty
Not guilty of an offense as charged, but guilty of a named lesser included offense.
Guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions.
Not guilty.
May a plea be received for an offense for which the mandatory sentence is death?
No
What offenses under the UCMJ make death a mandatory sentence?
There are none.
When the accused is pleading to a lesser included offense without the use of exceptions or substitutions, what should the defense counsel do?
Provide a written revised specification accurately reflecting the plea and request that the revised specification be included in the record as an appellate exhibit.
What is a conditional plea?
A plea where the accused agrees to plead guilty to an offense while reserving the right on further review or appeal, to review the adverse determination of any specified pretrial motion (such as a motion to suppress evidence).
Whose permission is necessary to make a conditional plea?
The military judge. The government must also consent to the conditional plea.
When can an accused withdraw a guilty plea?
Any time before the sentence is announced.
