RCMs: Forwarding and Disposition of Charges

Question 1

Where a commander is in receipt of charges, can he dispose of some and refer others to a court-martial?

Answer 1

Yes. Charges can be disposed of individually or collectively.

Question 2

Can different charges be referred to different courts-martial?

Answer 2

No. If a commander refers charges to a court-martial, all known charges should be referred to a single court-martial.

Question 3

Where a commander dismisses charges from a court-martial, is the commander barred from taking further action on them?

Answer 3

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.

Question 4

How does a commander dismiss charges?

Answer 4

The commander draws a line through the charge and/or specification.

Question 5

Can a commander dismiss charges with an eye toward NJP against an accused who has already refused NJP?

Answer 5

Yes, but it is entirely within the discretion of the commander.

Question 6

If a charge fails to state an offense or is otherwise defective, what can the commander do?

Answer 6

Dismiss the charge and prefer a new charge.

Question 7

If the defense realizes a charge does not state an offense, what is the best course of action for the defense?

Answer 7

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.

Question 8

The defense is provided initial discovery in all cases where charges are preferred. Why are we provided these documents?

Answer 8

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.

Question 9

When a commander forwards charges to a superior commander, what must be included in the documents forwarded to the superior commander?

Answer 9

A recommendation as to disposition.

Question 10

Can a superior commander make a recommendation as to disposition when he forwards charges to an inferior commander?

Answer 10

No. This is textbook UCI and is specifically prohibited by the MCM.

Question 11

Can a commander dismiss charges and still forward a matter to a superior commander for disposition?

Answer 11

Yes. A commander can dismiss charges and send it to a higher authority to let that authority determine what charges are appropriate, if any.

Question 12

When an officer exercising authority to administer nonjudicial punishment, but not court-martial authority, is in receipt of charges, what are his options?

Answer 12

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.

Question 13

When an officer exercising summary court-martial authority is in receipt of charges, what are his options?

Answer 13

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.

Question 14

When an officer exercising special court-martial authority is in receipt of charges, what are his options?

Answer 14

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.

Question 15

What initial disclosures must be made to the defense following the preferral of charges?

Answer 15

The charge sheet; and

Any matters accompanying the charges when they were preferred.

Question 16

What initial disclosures must be made to the defense following the direction of a preliminary hearing?

Answer 16

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.

Question 17

If evidence the government intends to introduce at the preliminary hearing is contraband, how does the defense inspect it?

Answer 17

The defense requests access to it from the government.

Question 18

What are the four purposes of an Article 32 preliminary hearing?

Answer 18

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.

Question 19

Failure to substantially comply with the requirements of RCM 404 in regards to Art. 32 hearings results in what kind of relief?

Answer 19

A delay in the disposition of the proceedings; or

Disapproval of the proceedings.

Question 20

In order for there to be relief due to failure to comply with the requirements for an Art. 32 hearing, what must occur?

Answer 20

The accused must be prejudiced by the failure to comply with the rule.

Question 21

Can a convening authority have an Article 32 hearing without the accused?

Answer 21

Yes. Even when the accused waives the Art. 32, the convening authority can still have the Art. 32 hearing.

Question 22

Can an Art. 32 hearing take place before an accused is charged?

Answer 22

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.

Question 23

Who may direct an Article 32 hearing be held?

Answer 23

Any court-martial convening authority.

Question 24

How can the defense get ahold of evidence which is not under the control of the government prior to a preliminary hearing?

Answer 24

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.

Question 25

Who has the power to issue a pre-referral investigative subpoena?

Answer 25

Trial counsel, if authorized by the convening authority; and

A military judge, under RCM 309.

Question 26

Does the preliminary hearing officer have the power to issue pre-referral investigative subpoenas?

Answer 26

No.

Question 27

What power does the PHO have in regards to pre-referral investigative subpoenas?

Answer 27

The PHO can order the trial counsel to issue a pre-referral investigative subpoena. However, the TC can refuse, in which case the TC must state the reasons for their refusal in writing and enter that into the record of the Art. 32 hearing.

Question 28

How long before the Art. 32 hearing must the defense submit a motion to admit evidence under MRE 412?

Answer 28

Five days before the Art. 32 hearing, unless the PHO extends the time. However, the motion must be submitted before the hearing.

Question 29

Is the PHO required to rule on objections made by parties at the Article 32 hearing?

Answer 29

No. All objections will be noted in the PHO report if the party objecting so requests.

Question 30

How long after the Art. 32 hearing do the parties have to submit additional matters for consideration by the PHO before he makes his decision?

Answer 30

24 hours.

Question 31

How long do the parties have to file rebuttals to each other’s additional matters?

Answer 31

Five days.

Question 32

Following the delivery of the PHO report to the convening authority, what happens next?

Answer 32

The CA will cause the PHO report to be delivered to the parties; and
The CA will make a determination as to disposition. If necessary, the commander will forward the charges to a superior commander for disposition.

Question 33

Can the defense object to a PHO report’s findings?

Answer 33

Yes. These are made to the convening authority who directed the hearing.

Question 34

How long after the distribution of the PHO report can the accused make objections to the PHO report?

Answer 34

Five days after receipt of the report.

Question 35

Do objections to the PHO report prevent the convening authority from referring the charges to a court-martial?

Answer 35

No. The CA can refer charges within the five-day period during which objections may be filed.

Question 36

When can an accused by granted relief from a waiver of the Art. 32 hearing or a forfeiture of an objection?

Answer 36

When the accused can show good cause for why they should receive the relief.

Question 37

Who may grant this relief?

Answer 37

The convening authority, a superior convening authority, or a military judge.

Question 38

Before charges are referred to a general court-martial, what must occur?

Answer 38

The charge must be referred to the Staff Judge Advocate of the convening authority for consideration and advice, i.e. pretrial advice.

Question 39

Must there be a pretrial advice report issued by the CA’s SJA before the charges are referred to a special court-martial?

Answer 39

No

Question 40

What must occur before charges are referred to a special court-martial?

Answer 40

The convening authority must consult with their SJA. However, a pretrial advice does not need to be prepared.

Question 41

When is supplementary pretrial advice required before the charges are re-referred to a GCM?

Answer 41

When the charges have been withdrawn from a GCM or when a mistrial is declared in a GCM.

Question 42

May an SJA use the PHO Report in writing his pretrial advice?

Answer 42

Yes, but he must make an independent determination and sign the advice personally.

Question 43

What is the result of information in a pretrial advice report being incomplete or inaccurate to the point that it is misleading?

Answer 43

A motion for appropriate relief because the pretrial advice is defective under RCM 905(b)(1).

Question 44

When the pretrial advice is defective, what type of motion is appropriate?

Answer 44

A pretrial motion objecting based on defects in the pretrial advice.