RCMs: Referral, Service, Amendment, and Withdrawal of Charges Flashcards
What is referral?
The order of a convening authority that charges and specifications against an accused will be tried by a certain type of court-martial.
What are the three things needed for charges to be referred?
A convening authority authorized to convene the court-martial;
preferred charges which have been received by the convening authority; and
a court-martial convened by the convening authority.
Who is barred from referring charges to a court-martial?
An accuser.
What must the convening authority find in order to refer charges to a court-martial?
There is probable cause to believe that an offense triable by court-martial has been committed;
that the accused committed it; and
that the specification alleges an offense.
Do the rules of evidence apply to a convening authority determining whether there is probable cause to find an offense has been committed or that the accused committed it?
No.
Must a convening authority refer all charges which the evidence can support?
No.
What must be done before a convening authority refers charges to a General Court-Martial?
A preliminary hearing must be held; and
The convening authority must consult with a judge advocate and receive their pre-referral advice.
What must be done before a convening authority refers charges to a Special Court-Martial?
The convening authority must consult with a judge advocate.
How are charges referred by the convening authority?
By personal order of the CA.
Where is the special instruction noting that a case is referred as a capital case located?
On the charge sheet.
If a case is to be tried as a judge-alone Special Court-Martial (“short-martial”) what must the convening authority do?
The CA must include a special instruction to that effect on the charge sheet.
When must the special instruction regarding the case being referred to judge-alone SPCM be noted on the charge sheet?
Before arraignment.
How is referral evidenced on a charge sheet?
By the indorsement of the convening authority.
Must all copies of the charge sheet be signed by the CA?
No, only the original must be signed by the CA. However, it is good practice for copies to be signed.
After what event must an accused consent to the joinder of offenses to a court-martial?
After the accused has been arraigned. The accused must consent to the joinder of offenses to a court-martial to which the accused has already been arraigned. If the accused does not consent, the charges must be referred to a different court-martial.
After referral of charges, what must the trial counsel detailed to the case do?
They must serve on the accused a copy of the charge sheet?
If the charges on a referred charge sheet are changed post-referral, what must the trial counsel do?
Notify the defense counsel.
If the charge sheet is changed post-referral to include new charges, or substantially new allegations, what must the trial counsel do?
They must serve an updated copy of the charge sheet on the accused.
Can service of charges be made on the defense counsel in lieu of the accused?
No. The charges must be served on the accused personally.
When does trial “commence?”
When the accused is arraigned.
When is the soonest an accused can be arraigned, i.e. their trial commence, after service of the charges in a General Court-Martial?
Five days after the date of service of charges on the accused unless waived by the accused.
When is the soonest an accused can be arraigned, i.e. their trial commence, after service of the charges in a Special Court-Martial?
Three days after the date of service of charges on the accused unless waived by the accused.
What types of changes can a trial counsel make to a charge sheet?
Both major and minor changes.
What are considered “major” changes to a charge sheet?
Adding a party, charge, or a substantial matter not fairly included in the preferred charge or specification.
What is considered a “minor” change to a charge sheet?
Anything that is not a major change.
Before referral, when can major changes be made to the charge sheet?
At any time.
After referral to a Special Court-Martial, when can major changes be made to the charges or specifications?
Only when the accused does not object to the changes.
If the accused objects to major changes to a charge or specification referred to a Special Court-Martial, how does the major change get added to the charge/specification?
Only by withdrawing the charges, amending them, and then re-referring them to the Special Court-Martial.
What is the result of major changes being made to a charge or specification after a preliminary hearing has occurred?
The preliminary hearing may have to be reopened.
When can minor changes be made to a charge sheet?
After referral and before arraignment.
What happens when the government seeks to make minor changes to the charges/specifications after arraignment?
The government must make a motion to make minor changes to the charges/specifications after arraignment.
What determines whether the judge will approve a government motion to make minor changes to the charges/specifications post-arraignment?
Whether a substantial right of the accused will be prejudiced by the change.
After what event can no more changes be made to the charges/specifications?
After findings are announced.
What is the impact of a scrivener’s error on a charge sheet?
None. The charge need not be sworn again when correcting a scrivener’s error.
Changes to the charges/specifications other than scrivener’s errors require what?
That the accuser sign and swear the charges again.
All changes to charges should be initialed by whom?
The person making the changes.
With whom must the trial counsel consult when making changes to the charges?
The convening authority.
When can a convening authority withdraw charges from a court-martial?
Any time before the findings are announced.
Can a trial counsel unilaterally withdraw charges?
No. Only the convening authority can withdraw charges.
How does a trial counsel withdraw charges?
By lining out the affected charges or specifications, renumbering remaining charges or specifications as necessary, and initialing the changes.
Can charges that were withdrawn be re-referred?
Yes, but they must be referred to a different court-martial.
What must occur if charges are withdrawn from one court-martial, and then re-referred to another court-martial?
The trial counsel must include in the record of the later court-martial the reasons for the withdrawal and the re-referral.
When can charges be withdrawn and then re-referred to a new court-martial?
Before arraignment of the accused at the old court-martial.
