RCMs: Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters

Question 1

Who may report an offense under the UCMJ?

Answer 1

Anyone, military or civilian.

Question 2

Who may receive a report of an offense under the UMCJ?

Answer 2

Any military authority.

Question 3

To whom should a report of an offense under the UCMJ be forwarded to?

Answer 3

The immediate commander of the suspect.

Question 4

Another word for “arrested” in military terminology is what?

Answer 4

Apprehension

Question 5

Apprehension must be based on what?

Answer 5

Probable cause.

Question 6

Investigative detention is another word for what?

Answer 6

Detained for questioning in civilian terminology.

Question 7

Does investigative detention require probable cause?

Answer 7

No. You may be detained for questioning on less than probable cause, i.e. some evidence.

Question 8

When can the police engage in an extensive search of a person?

Answer 8

When that person is apprehended, i.e. arrested. Not when they are detained for questioning.

Question 9

Can a local or state civilian police officer arrest a servicemember for a violation of the UCMJ?

Answer 9

No

Question 10

Are barracks considered a private dwelling for the purposes of search and seizure?

Answer 10

No

Question 11

When a servicemember is accused or suspected of committing an offense triable by court-martial, the commander of the servicemember must first do what?

Answer 11

Cause a preliminary inquiry to occur into the matter.

Question 12

Who can conduct a preliminary inquiry?

Answer 12

The commander or members of the command, as well as criminal investigative services.

Question 13

When must criminal investigative services be called to perform a preliminary inquiry?

Answer 13

Where a report has been received of a sex-related offense.

Question 14

What are the four types of pretrial restraint?

Answer 14

Conditions on Liberty
Restriction
Arrest
Confinement

Question 15

What are examples of conditions on liberty?

Answer 15

Military Protective Order
Order not to go to a specific place
Orders to report periodically to a particular person

Question 16

A person has been given an MPO ordering them not to go near a victim. Has the speedy trial clock begun?

Answer 16

Yes, assuming charges have not yet been preferred. This is because conditions on liberty (an MPO) is a form of pretrial restraint, which starts the speedy trial clock. Had charges been preferred prior to the imposition of the MPO, the clock would have started when the charges were preferred.

Question 17

What is the difference between restriction in lieu of arrest and arrest?

Answer 17

Restriction allows an accused to perform normal military duties. Arrest does not. Both of them require the accused to remain within certain boundaries.

Question 18

Who may order pretrial restraint for a civilian or officer?

Answer 18

Only the commanding officer to whose authority the officer or civilian is subject.

Question 19

Who may order an enlisted person into pretrial restraint?

Answer 19

Any commissioned officer. No warrant officers.

Question 20

How must a person be informed of their being subject to pretrial restraint?

Answer 20

They must be informed orally or in writing, except for pretrial confinement, which requires the person be delivered to the place of confinement.

Question 21

When a person is placed under restraint, what information must they be given?

Answer 21

The nature of the offense which is the basis for the restraint.

Question 22

When does pretrial restraint terminate?

Answer 22

When the sentence is adjudged, the accused is acquitted of all charges, or all charges are dismissed.

Question 23

An accused was subject to pretrial restraint. The government broke the 120-day clock and the accused was released from pretrial restraint. If the government re-prefers charges, can he be placed back on pretrial restraint?

Answer 23

Yes

Question 24

Does an accused have the right to select their military counsel for an IRO hearing?

Answer 24

No.

Question 25

Who may direct that a confinee be released from pretrial confinement before charges are referred to a court-martial?

Answer 25

The commanding officer of the detainee; OR a military judge if the defense moves for an Art. 30a hearing and asks that the accused be released from pretrial confinement.

Question 26

Who may direct that a detainee be released from pretrial confinement after charges are referred to a court-martial?

Answer 26

A military judge.

Question 27

What must happen within 24 hours of a detainee being placed in pretrial confinement?

Answer 27

Their commander must be given a report detailing their basic information, the charges, and the person who ordered the confinement.

Question 28

What must happen within 48 hours of a detainee being placed in pretrial confinement?

Answer 28

A neutral, detached officer must determine whether there is probable cause to continue pretrial confinement.

Question 29

What must happen within 72 hours of a detainee being placed in pretrial confinement?

Answer 29

The commander must write a memo explaining why the elements of RCM 305(h)(2)(b) are met and therefore require the continued pretrial confinement of the detainee.

Question 30

What is the standard for determining whether a reviewing officer may extend the 7-day review period to ten days?

Answer 30

Good cause.

Question 31

When may the 7-day reviewing officer reconsider his approval of pretrial confinement?

Answer 31

When there is “significant information” not previously considered.

Question 32

At what point can a military judge review the propriety of pretrial confinement for the accused?

Answer 32

After charges have been referred to a court-martial.

Question 33

A military judge may release a detainee from pretrial confinement if he determines the 7-day reviewing officer’s decision was what?

Answer 33

An abuse of discretion.

Question 34

What is the remedy for an accused who was subjected to pretrial confinement and who is later released as a result of a military judge’s review?

Answer 34

Administrative credit against the sentence adjudged.

Question 35

What is the remedy for an accused when the requirements that a 48-hour review and 72-hour memo are not abided by?

Answer 35

Administrative credit against the sentence adjudged.

Question 36

An accused is subjected to pretrial confinement for 20 days. At a later hearing, the military judge determines the IRO officer abused his discretion. Additionally, it was discovered that the procedures for pretrial confinement requiring a 48-hour determination and a 72-hour memo were not followed. What is the number of days administrative credit that the judge can give to the accused?

Answer 36

There is no limit. The rule states that the MJ can give credit for time served as a result of abuse of discretion or unusually harsh circumstances in addition to credit given as a result of noncompliance with the rule.

Question 37

A person who is released from pretrial confinement by a military judge may only be placed back into pretrial confinement if what?

Answer 37

If new evidence comes to light; or

If new offenses have been committed.

Question 38

Who has discretion to dispose of cases?

Answer 38

Commanders have discretion to dispose of offenses by members of their command.

Question 39

What does it mean to withhold discretion to dispose of offenses?

Answer 39

A superior commander withholds the ability of a subordinate commander to be able to determine whether charges will be preferred and to what forum they will be referred.

Question 40

If a superior commander has not withheld discretion of an inferior commander to dispose of offenses, are there any limitations on the inferior commander’s discretion to dispose of the offense?

Answer 40

No.

Question 41

In what ways can offenses (no charges preferred yet) be disposed of?

Answer 41

The commander can take no action, can take administrative actions, can NJP the offender, prefer charges against the accused.

Question 42

In what ways can charges that have been preferred be disposed of?

Answer 42

Preferred charges may be disposed of by dismissing them, forwarding them to a higher commander, or referring them to a summary, special or general court-martial.

Question 43

When a particular commander does not possess the authority to refer charges to what they believe is an appropriate forum, what can they do?

Answer 43

Forward the charges to a higher authority who possesses that power.

Question 44

Who can prefer charges?

Answer 44

Anyone subject to the UCMJ.

Question 45

What is another name for the person who prefers charges?

Answer 45

An accuser.

Question 46

On a charge sheet, if there is only one charge, does it need to be numbered?

Answer 46

No

Question 47

If there are multiple charges on a charge sheet, what numerals are used?

Answer 47

Roman numerals. (Charge I, Charge II, Charge III, etc.)

Question 48

How are additional charges numbered?

Answer 48

Roman numerals, the same way original charges are.

Question 49

If there is only one additional charge, does it need to be numbered?

Answer 49

No

Question 50

When do additional charges have to have a separate trial from the original charges?

Answer 50

When they are preferred after the accused was arraigned on the original set of charges.

Question 51

Can both an offense and a lesser included offense be separately charged?

Answer 51

No

Question 52

After charges are preferred against an accused, what must occur?

Answer 52

The immediate commander of the accused must cause the accused to be informed of the charges preferred against them, the accuser, and the person ordering the accuser to prefer charges. This is noted in Box 12 of the charge sheet.

Question 53

What is the remedy for failure to inform the accused of the charges preferred against them?

Answer 53

A continuance or recess of sufficient length to allow the accused to prepare a defense.

Question 54

What must the accused show in order to be granted a remedy for failure to notify them of charges preferred against them?

Answer 54

That the failure to notify the accused was “hindered in the preparation of a defense.”

Question 55

Article 30a hearings apply to what type of matters?

Answer 55

Pre-referral matters.

Question 56

What type of pre-referral matters can a MJ approve or disapprove at an Art. 30a hearing?

Answer 56

Pre-referral investigative subpoenas;
Pre-referral warrants or orders for wire or electronic communications;
Requests for relief from subpoena or other process; and
Pre-referral matters referred by an appellate court.

Question 57

What involvement does the defense have in pre-referral matters under Art. 30a?

Answer 57

The defense may request the government to make applications for pre-referral investigative subpoenas or pre-referral warrants or orders for wire or electronic communications.

Question 58

On what grounds will a judge quash a pre-referral investigative subpoena or warrant for electronic/wire communications?

Answer 58

That compliance with the request/subpoena/warrant is unreasonable, oppressive, or prohibited by law.