RCMs: Forwarding and Disposition of Charges Flashcards
(44 cards)
Where a commander is in receipt of charges, can he dispose of some and refer others to a court-martial?
Yes. Charges can be disposed of individually or collectively.
Can different charges be referred to different courts-martial?
No. If a commander refers charges to a court-martial, all known charges should be referred to a single court-martial.
Where a commander dismisses charges from a court-martial, is the commander barred from taking further action on them?
No. Dismissal of charges from a court-martial does not prevent the commander from taking other action on the offense, such as no action, administrative action, or NJP.
How does a commander dismiss charges?
The commander draws a line through the charge and/or specification.
Can a commander dismiss charges with an eye toward NJP against an accused who has already refused NJP?
Yes, but it is entirely within the discretion of the commander.
If a charge fails to state an offense or is otherwise defective, what can the commander do?
Dismiss the charge and prefer a new charge.
If the defense realizes a charge does not state an offense, what is the best course of action for the defense?
Wait until jeopardy attaches (the presentation of evidence begins/the members are impaneled) and then make a motion to dismiss for failure to state an offense.
The defense is provided initial discovery in all cases where charges are preferred. Why are we provided these documents?
Under RCM 401(c)(2)(A), the discussion states that when a commander forwards charges to a superior commander for disposition/referral to court-martial, the commander who forwards the charges to the superior commander must include certain types of documents/evidence so that the superior commander can make a determination as to disposition. These documents are what are provided to the defense as initial discovery.
When a commander forwards charges to a superior commander, what must be included in the documents forwarded to the superior commander?
A recommendation as to disposition.
Can a superior commander make a recommendation as to disposition when he forwards charges to an inferior commander?
No. This is textbook UCI and is specifically prohibited by the MCM.
Can a commander dismiss charges and still forward a matter to a superior commander for disposition?
Yes. A commander can dismiss charges and send it to a higher authority to let that authority determine what charges are appropriate, if any.
When an officer exercising authority to administer nonjudicial punishment, but not court-martial authority, is in receipt of charges, what are his options?
Dismiss the charges and take no action;
Dismiss the charges and take administrative action;
Dismiss the charges and take the accused to NJP; or
Forward the charges to a commander exercising summary court-martial authority.
When an officer exercising summary court-martial authority is in receipt of charges, what are his options?
Dismiss the charges and take no action;
Dismiss the charges and take administrative action;
Dismiss the charges and take the accused to NJP;
Refer the charges to a summary court-martial;
Direct a preliminary hearing and if appropriate, forward the report of the preliminary hearing with the charges to a superior commander;
Forward the charges to a superior commander with a recommendation as to disposition; or
Forward the charges to an inferior commander without a recommendation for disposition.
When an officer exercising special court-martial authority is in receipt of charges, what are his options?
Dismiss the charges and take no action;
Dismiss the charges and take administrative action;
Dismiss the charges and take the accused to NJP;
Refer the charges to a summary court-martial;
Refer the charges to a special court-martial;
Direct a preliminary hearing and if appropriate, forward the report of the preliminary hearing with the charges to a superior commander;
Forward the charges to a superior commander with a recommendation as to disposition; or
Forward the charges to an inferior commander without a recommendation for disposition.
What initial disclosures must be made to the defense following the preferral of charges?
The charge sheet; and
Any matters accompanying the charges when they were preferred.
What initial disclosures must be made to the defense following the direction of a preliminary hearing?
The Article 32 hearing convening order;
Statements of witnesses within the control of the government which the prosecution intends to introduce at the preliminary hearing;
All evidence the government intends to introduce at the hearing; and
Any matters provided to the convening authority when deciding to direct the preliminary hearing.
If evidence the government intends to introduce at the preliminary hearing is contraband, how does the defense inspect it?
The defense requests access to it from the government.
What are the four purposes of an Article 32 preliminary hearing?
Determine whether each specification alleges an offense;
Whether there is probable cause to believe the accused has committed the offenses charged;
Whether the convening authority has jurisdiction over the accused and the offense; and
To recommend the disposition that should be made of the case.
Failure to substantially comply with the requirements of RCM 404 in regards to Art. 32 hearings results in what kind of relief?
A delay in the disposition of the proceedings; or
Disapproval of the proceedings.
In order for there to be relief due to failure to comply with the requirements for an Art. 32 hearing, what must occur?
The accused must be prejudiced by the failure to comply with the rule.
Can a convening authority have an Article 32 hearing without the accused?
Yes. Even when the accused waives the Art. 32, the convening authority can still have the Art. 32 hearing.
Can an Art. 32 hearing take place before an accused is charged?
Yes. If the hearing occurs before the accused is charged, there does not need to be a new Art. 32 hearing so long as the accused was present at the hearing and afforded all of their rights.
Who may direct an Article 32 hearing be held?
Any court-martial convening authority.
How can the defense get ahold of evidence which is not under the control of the government prior to a preliminary hearing?
By asking the person in control of the evidence to turn it over to you; or
By a pre-referral investigative subpoena under RCM 309.
