RCMs: Pretrial Matters

Question 1

What marks the beginning of pretrial matters?

Answer 1

The service of charges on the accused following their being preferred.

Question 2

After the service of charges on the accused, what must be turned over by the government?

Answer 2

The trial counsel must hand over to the defense all papers accompanying the charges, the convening order, and any sworn statement relating to the charges that is in the government’s possession.

Question 3

What must be turned over to the accused only if the defense requests it?

Answer 3

Any books, papers, documents, data, photographs, tangible objects, buildings or places, or copies of portions of these items, if the item is within the possession, custody, or control of military authorities and 1) the item is relevant to the defense preparation; 2) the government intends to use the item in the case in chief at trial; 3) the government anticipates using the item in rebuttal; or 4) the item was obtained from or belongs to the accused.
The results or report of any physical or psychological examination, any scientific tests or experiments, or copies thereof, which are within the possession, custody or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to trial counsel if 1) he item is relevant to the defense preparation; 2) the government intends to use the item in the case in chief at trial; or 3) the government anticipates using the item in rebuttal.
Written materials the government will present at presentencing proceedings and the names and contact information of witnesses the government intends to call at the presentencing proceedings.

Question 4

When must the government notify the defense of the witnesses it intends to call and their contact information?

Answer 4

Before the beginning of the trial on the merits.

Question 5

When must the government notify the defense of any records of prior civilian or court-martial convictions of the accused?

Answer 5

Before arraignment.

Question 6

When must trial counsel disclose to the defense evidence favorable to the defense?

Answer 6

As soon as practicable. This is a continuing duty to disclose.

Question 7

What is considered “evidence favorable to the defense?”

Answer 7

Evidence which negates the guilt of the accused of the offense charged;
Reduces the degree of guilt of the accused of the offense charged;
Reduces the punishment (evidence in extenuation and mitigation); or
Adversely affects the credibility of any government witness or evidence.

Question 8

Trial counsel should act in what manner in regards to finding evidence that is favorable to the accused?

Answer 8

With due diligence and good faith.

Question 9

When must the defense turn over to the government the names and contact information of all witnesses it intends to call in its case in chief and all sworn or signed statements made by those witnesses in connection to the case?

Answer 9

Before the beginning of the trial on the merits.

Question 10

What information must the defense provide to the government only if the government requests it?

Answer 10

Names and contact info for witnesses the defense intends to call at the presentencing proceedings and any written material the defense intends to present at the presentencing hearing.

Question 11

When must the defense notify the government of its intent to offer a defense of alibi, innocent ingestion or lack of mental responsibility?

Answer 11

Before the beginning of the trial on the merits.

Question 12

When must the defense provide to the government any books, papers, documents, data, photographs, tangible objects, buildings or places, or copies of portions of these items, if the item is within the possession of the defense; and , the defense intends to use the item in the case in chief at trial?

Answer 12

Only after the defense has requested the same from the government, the government has provided it to the defense, and the trial counsel has requested the same from the defense.

Question 13

When must the defense provide to the government the results or report of any physical or psychological examination, any scientific tests or experiments, or copies thereof, which are within the possession of the defense and the defense intends to introduce at the trial on the merits?

Answer 13

Only after the defense has requested the same from the government, the government has provided it to the defense, and the trial counsel has requested the same from the defense.

Question 14

May a party to a court-martial comment on another side’s failing to call a witness they originally disclosed to the other side?

Answer 14

No.

Question 15

If new evidence is discovered during the course of the trial that was requested by the other side prior to the trial, what must the party who discovered the new evidence do?

Answer 15

They must notify the opposing party or the military judge.

Question 16

If the government intends to call a victim of an offense as a witness at a proceeding, what must trial counsel do? What must defense counsel do in response?

Answer 16

The trial counsel must notify the accused.
The defense counsel must, if he desires to interview the victim, request to interview the victim through the special victims’ counsel.

Question 17

Must an interview of the victim take place in the presence of the VLC or TC?

Answer 17

No, but it can be requested by the victim. If the victim requests that it be in the presence of the TC or VLC, it must be.

Question 18

If a party is unsure of whether certain material should be discovered to the other side, what can that party do?

Answer 18

It can make a motion for the judge to review the material in camera, who can then make a determination on whether the material should be discovered, or if it should be sealed.

Question 19

What are the remedies for failure to comply with the rules regulating discovery?

Answer 19

The judge can order the party to permit discovery;
Grant a continuance;
Prohibit the party from introducing evidence, calling a witness, or raising a defense; or
Enter such orders as are appropriate.

Question 20

Under what circumstances will a military judge prohibit the testimony of a defense witness due to a failure to comply with the rules of discovery?

Answer 20

Only when the judge finds that the defense’s failure to comply with the rules was due to a desire by the defense to gain a tactical advantage or to aid in presenting fabricated testimony.

Question 21

When may a deposition of a witness be taken?

Answer 21

When it is requested by a party who can demonstrate that due to exceptional circumstances it is in the interest of justice that the testimony of the prospective witness be taken and preserved for use at trial.

Question 22

What is an “exceptional circumstance” in regards to depositions?

Answer 22

When the witness will not be available at the time of trial.

Question 23

Can a victim of a crime have their deposition taken in lieu of submitting to in-person pretrial interviews?

Answer 23

No. A victim refusing to testify in-person at a preliminary hearing or to submit to pretrial interviews is not considered as them being “unavailable” under the rules.

Question 24

What is required for a request for a written deposition to be approved?

Answer 24

The consent of both parties.

Question 25

When is the consent of both parties not required in order to approve a request for a written deposition?

Answer 25

When the deposition is taken solely in lieu of the witness testifying at sentencing.

Question 26

How is a transcript of a deposition offered into evidence?

Answer 26

It is typically read into the record by the party offering it.

Question 27

Can the members take the transcript into the deliberation room with them?

Answer 27

No. The transcript/deposition is supposed to be just like in-person testimony: you hear it and don’t get to hear it again.

Question 28

How are objections different when the material is in a transcript vs. when they are in-person?

Answer 28

There is no difference.

Question 29

Who may order that a deposition be taken upon request of a party?

Answer 29

Prior to referral, the convening authority. After referral, the convening authority or the military judge.

Question 30

If a request for a deposition is denied by a convening authority, what is the remedy?

Answer 30

The military judge may, after referral, review the denial.

Question 31

Is a witness allowed to testify remotely at a court-martial?

Answer 31

Yes, but only when the parties agree to it.

Question 32

When will a military judge authorize a witness to testify by remote means over a party’s objection?

Answer 32

When the practical difficulties of getting the witness there in person outweigh the benefits of having the witness there in person.

Question 33

Is a matter considered “in issue” when it is included in a stipulation of fact?

Answer 33

No, because it is stipulated to, i.e. there is no issue on its being a fact.

Question 34

On what may a witness not testify remotely about when the accused objects to it?

Answer 34

The ultimate issue of guilt.

Question 35

Where a fact is in issue as both an interlocutory question and on the ultimate issue of guilt, can a witness still testify remotely on those issues?

Answer 35

No. The witness may testify remotely on the interlocutory question, but cannot testify remotely on the ultimate issue of guilt unless the accused does not object.

Question 36

Is a party entitled to the presence of an “unavailable” witness under RCM 804?

Answer 36

Generally, no.

Question 37

When is a party entitled to the presence of an “unavailable” witness?

Answer 37

When the witness’s testimony is “of such central importance to an issue that it is essential to a fair trial” and there is no adequate substitute for the testimony.

Question 38

What is the remedy for a witness who is unavailable but whose testimony is of central importance to a fair trial?

Answer 38

The judge may grant either a continuance or shall abate the proceedings unless the unavailability of the witness is caused or could have been avoided by the party requesting the witness.

Question 39

What witnesses must the government produce for use at a court-martial?

Answer 39

All witnesses whose testimony trial counsel considers to be relevant and necessary for the prosecution.

Question 40

If the defense wishes the government to secure the presence of witnesses for use by the defense, what is the process for doing so?

Answer 40

The defense will provide a list of said witnesses to the trial counsel.

Question 41

What is the standard for whether a witness requested by the defense will be granted by the government?

Answer 41

Whether the witness is relevant and necessary to the defense’s case.

Question 42

When must the list of requested witnesses be submitted to the trial counsel by the defense?

Answer 42

Early enough that it would reasonably allow the government to produce the witness on the date they are requested to be present.

Question 43

If the trial counsel denies the request for a witness from the defense, what can the defense do to try to still get the witness?

Answer 43

The defense can make a motion for production of a witness to the military judge which, if approved, will require the production of the witness by the government.

Question 44

What must a party do before hiring an expert witness or consultant?

Answer 44

Request the convening authority to authorize the employment and fix the compensation of the expert; and
Notify the opposing party of the request.

Question 45

An expert witness or consultant will only be authorized by the convening authority if what?

Answer 45

The expert is necessary to the case of the requesting party.

Question 46

If a CA denies a request for an expert, what can the requesting party do?

Answer 46

The requesting party can request the military review the request by making a motion for employment of an expert witness/consultant.

Question 47

When can the requesting party make a motion to employ an expert witness/consultant?

Answer 47

After referral of the charges.

Question 48

What is the standard a judge uses in determining whether to approve a motion to employ an expert witness?

Answer 48

Whether the expert witness is relevant and necessary to the party’s case and whether the government has provided an adequate substitute.

Question 49

What is the standard a judge uses in determining whether to approve a motion to employ an expert consultant?

Answer 49

Whether the consultant is necessary for an adequate defense.

Question 50

Each party is entitled to what kind of evidence?

Answer 50

Evidence that is relevant and necessary.

Question 51

When is relevant evidence considered “necessary?”

Answer 51

When it is not cumulative and when it would contribute to a party’s presentation of the case in some positive way on a matter in issue.

Question 52

Does a party have a right to evidence which is destroyed, lost or otherwise not subject to the compulsory process?

Answer 52

No

Question 53

When will evidence that is not subject to compulsory process be required to be produced?

Answer 53

When it is of such central importance to an issue that is essential to a fair trial and there is no adequate substitute.

Question 54

What is the remedy for evidence which is of such central importance to an issue that is essential to a fair trial and there is no adequate substitute and the government cannot produce it?

Answer 54

The judge will grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings unless the unavailability of the evidence is the fault of the requesting party.

Question 55

What must a defense request for discovery of evidence contain?

Answer 55

A description of each item requested sufficient to show its relevance and necessity, a statement where it can be obtained, and if known, the name, address, and telephone number of the custodian of the evidence.

Question 56

How might the attendance of a military witness be obtained?

Answer 56

By notifying the commander of the witness of the time, place and date the presence of the witness is required and requesting the commander to issue any necessary orders to the witness. This can also be done through informal coordination between the counsel and the witness’s commander.

Question 57

Evidence is under the control of the government. How do you get it?

Answer 57

Notify the custodian of the evidence of the time, place and date the evidence is required and request the custodian to send or deliver the evidence.

Question 58

How can civilian witnesses or evidence not under the control of the government be obtained?

Answer 58

Subpoenas.

Question 59

When is a subpoena not necessary to get evidence or civilian witnesses not under the control of the government?

Answer 59

When the evidence is handed over to you willingly or when the witness voluntarily appears.

Question 60

What can a subpoena not do?

Answer 60

Order a witness to testify at an Art. 32 hearing.

Question 61

What is an investigative subpoena?

Answer 61

A subpoena issued before referral of charges for the purpose of producing evidence for us in an investigation.

Question 62

Who can issue subpoenas?

Answer 62

Summary courts-martial, trial counsel of a GCM or SPCM, the president of a board of inquiry, an officer detailed to take a deposition, or a military judge (under certain circumstances).

Question 63

When can a military judge issue a subpoena?

Answer 63

When the government is seeking a pre-referral investigative subpoena; or
When the issuance of other types of subpoenas are authorized by a GCM convening authority, the detailed trial counsel, or counsel for the government.

Question 64

If a person refuses to comply with a subpoena, what is the remedy?

Answer 64

The judge, or if before referral, a military judge detailed under Art. 30a, or a GCM convening authority, may issue a warrant of attachment to compel the attendance of the witness or the production of the evidence, or both.

Question 65

What is a good thing to include in a request for evidence under the control of the government?

Answer 65

A request that the government preserve evidence and take all necessary steps to preserve specifically described records and other evidence in its possession.

Question 66

What is required to be found by the military judge when asked to issue a warrant for search and seizure?

Answer 66

Probable cause.

Question 67

When can a warrant be quashed?

Answer 67

When the subject of the warrant can show that the order is unreasonable, oppressive or prohibited by law.

Question 68

What are the two types of immunity someone can be given?

Answer 68

Testimonial and transactional.

Question 69

Can the government prosecute a witness who has testified under testimonial immunity using evidence gained by an investigation that was begun based on the testimony of that witness?

Answer 69

No. The government has a high burden of showing that the subsequent prosecution of a witness to whom testimonial immunity was given is not based on anything given in the testimony of the witness. No information whatsoever may be used. The witness’s testimony and the fruits therefrom cannot be used. It is preferred that prosecution of that witness be done before the witness testifies under immunity.

Question 70

When may the information from an immunized witness’s testimony be used in a subsequent prosecution of that witness?

Answer 70

When the witness is charged with perjury, making a false official statement, or failure to comply with an order to testify.

Question 71

Who may grant immunity?

Answer 71

Only a GCM convening authority or their designee.

Question 72

A witness testifies under a promise of immunity, but it was not the GCM convening authority who made the promise of immunity. When can the testimony of that witness not be used in a subsequent court-martial?

Answer 72

If the person who made the promise of immunity had apparent authority to make the promise.

Question 73

Can a GCM convening authority grant a witness immunity from prosecution in a federal court?

Answer 73

Yes, but only after having received authorization from the Attorney General of the United States.

Question 74

What types of witnesses can a GCM convening authority grant immunity to?

Answer 74

Those subject to the UCMJ or civilians, but both require approval from the Attorney General.

Question 75

To whom can a GCM convening authority delegate the authority to grant immunity?

Answer 75

A subordinate special court-martial convening authority.

Question 76

What is the scope of a grant of immunity? What is the witness required to do when the grant is given?

Answer 76

The witness may be ordered to testify, to speak to trial counsel or law enforcement, to answer questions of law enforcement.

Question 77

Can a person who has been given immunity refuse to testify at all?

Answer 77

No. They must testify or be prosecuted under Art. 131d.

Question 78

Can a person who has been given immunity choose not to answer certain questions in order to prevent self-incrimination?

Answer 78

No. The acceptance of immunity waives the witness’s right to remain silent.

Question 79

What is a method by which the defense can get their client immunity after the government has denied a request for immunity?

Answer 79

The defense can make a motion to have the decision to deny the request reviewed by the military judge. The judge will grant relief to the defense if he finds:
The witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify;
the government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the government through its own overreaching, has forced to witness to invoke their privilege against self-incrimination; and
the witness’s testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of the other witnesses.

Question 80

When a plea agreement offers to withdraw certain charges from a court-martial if the accused performs their respective promises under the agreement, who makes the determination on whether the accused has fulfilled their promises?

Answer 80

The convening authority. A judge need not determine whether an accused has breached their agreement.

Question 81

What can the defense do if the government reinstates charges or specifications because the accused is considered by the convening authority as having breached the plea agreement?

Answer 81

File a motion to dismiss the reinstituted charges on the grounds that the government is still bound by the plea agreement.

Question 82

What standard does the judge use in determining whether the accused has breached the agreement?

Answer 82

Preponderance of the evidence.

Question 83

What is segmented sentencing? Who performs segmented sentencing?

Answer 83

A judge. Segmented sentencing refers to the judge handing down individual sentences for each individual offense of which the accused is charged.

Question 84

What is cumulative sentencing?

Answer 84

Where the members of a court-martial give one single sentence encompassing all charges of which the accused is found guilty.

Question 85

Can a plea agreement include in it as a sentence limitation the possibility of a death sentence?

Answer 85

No. The accused cannot agree to be killed as part of a plea deal.

Question 86

Generally, can an accused agree to sentence limitations below the mandatory minimum?

Answer 86

No, generally.

Question 87

What are the exceptions to the rule against agreeing to sentence limitations below the mandatory minimum?

Answer 87

If an accused pleads guilty to an offense under Art. 56(b)(2), the agreement may allow the reducing of a mandatory dishonorable discharge to a bad conduct discharge.
If recommended by trial counsel, in exchange for substantial assistance by the accused in the investigation and prosecution of another person, a plea agreement may provide for a sentence that is less than the mandatory minimum sentence for the offense charged.

Question 88

Who may initiate plea deal negotiations?

Answer 88

Anyone.

Question 89

How do you know when a convening authority has accepted a plea deal?

Answer 89

They have signed it.

Question 90

When may the accused withdraw from a plea agreement?

Answer 90

Any time before the sentence is announced.

Question 91

If an accused wishes to withdraw from a plea agreement before the sentence is announced, what must the accused do?

Answer 91

They must notify the judge of their intent to withdraw from the plea agreement.

Question 92

What must the judge find in order to allow an accused to withdraw from a plea agreement?

Answer 92

That there is good cause for the accused to withdraw from the plea agreement. Without a showing of good cause, the accused will not be allowed to withdraw from the plea agreement.

Question 93

When may a convening authority withdraw from a plea agreement?

Answer 93

Any time before substantial performance by the accused of the terms contained in the agreement;
upon failure by the accused to fulfil any promise made in the plea agreement;
when inquiry by the judge discloses a disagreement between the parties; or
if findings are set aside as improvident on appellate review.

Question 94

Who may order an inquiry into the mental capacity or mental responsibility of the accused before referral? After referral?

Answer 94

Before referral, the convening authority. After referral, the military judge.

Question 95

If the convening authority orders an examination into the mental capacity or mental responsibility of the accused, and the accused is found competent to stand trial, can the judge later order another examination post-referral?

Answer 95

Yes. An earlier inquiry does not affect a judge’s ability to request an inquiry.

Question 96

Who performs a mental examination of an accused?

Answer 96

A board consisting of one or more persons, at least one of whom is a physician or clinical psychologist.

Question 97

Are statements of the accused that are made at a mental examination board available to trial counsel?

Answer 97

No, unless the accused, defense counsel, or after referral, the military judge, discloses them to the trial counsel.

Question 98

The accused must be brought to trial within 120 days of what?

Answer 98

Preferral of charges, the imposition of pretrial restraint, or the entry into active duty, whichever is earliest.

Question 99

Does the time between an offense occurring and the charges being preferred count toward the speedy trial clock?

Answer 99

No, but the statute of limitations does apply to that time.

Question 100

What day does not count toward the 120-day clock?

Answer 100

The date that pretrial restraint beings, the date charges are preferred, or the day the accused enters into active duty.

Question 101

Does the date of the arraignment count toward the 120-day clock?

Answer 101

Yes.

Question 102

The charges at a court martial are dismissed. The accused is in pretrial restraint. When does the 120-day clock begin again?

Answer 102

The date of the dismissal.

Question 103

The charges at a court martial are dismissed. The accused is not in pretrial restraint. When does the 120-day clock begin again?

Answer 103

When the charges are preferred again, when the accused is placed in pretrial restraint, or when the charges are not going to be preferred anew, the date of the mistrial or when the charges are dismissed.

Question 104

When the accused is released from pretrial restraint for a significant period of time, when does the 120-day clock begin again?

Answer 104

The earlier of the date of preferral of charges, the date on which restraint under RCM 304 is reimposed, or the date on entry of active duty.

Question 105

Who may approve pretrial delays as excludable delay?

Answer 105

The convening authority or the military judge.

Question 106

When are requests for pretrial delay submitted to the convening authority for resolution?

Answer 106

Before referral.

Question 107

When are requests for pretrial delay submitted to the military judge for resolution?

Answer 107

After referral.

Question 108

Aside from the reasons described in the MCM, when will pretrial delay be granted?

Answer 108

When good cause is shown.

Question 109

Upon making a motion for speedy trial relief under RCM 905, the defense counsel must do what?

Answer 109

Provide to the court a chronology of the case, which will become part of the appellate record as an appellate exhibit.

Question 110

What is the remedy for failure to comply with RCM 707 speedy trial requirements?

Answer 110

Dismissal of the affected charges, or in a sentence-only rehearing, sentence relief.

Question 111

When charges are dismissed due to a violation of RCM 707, are the charges dismissed with or without prejudice?

Answer 111

It depends.

Question 112

What determines whether charges are dismissed with or without prejudice for a violation of RCM 707?

Answer 112

Whether the accused has been deprived of his constitutional right to a speedy trial. If he has, then the charges will be dismissed with prejudice.