RCMs: Trial Procedure Generally

Question 1

Who can obtain and introduce evidence in a court-martial?

Answer 1

The parties or the court-martial members, subject to an interlocutory ruling by the judge.

Question 2

Who may request a witness be recalled?

Answer 2

The parties or the members. The judge approves or disapproves the request.

Question 3

Can counsel be directed to ask certain questions of a witness?

Answer 3

Yes, by either the members or the judge.

Question 4

If evidence is brought out in trial of uncharged misconduct, what occurs?

Answer 4

Nothing. The trial proceeds on the charged offenses. However, under MRE 105 the judge may instruct the members regarding uncharged misconduct.

Question 5

On what rulings is a judge’s determination final?

Answer 5

Questions of law, interlocutory questions, and a motion for a finding of not guilty.

Question 6

Can a judge change their previous ruling?

Answer 6

Yes, except for a previous motion for a finding of not guilty.

Question 7

Can a judge change a previous ruling made by a different judge?

Answer 7

Yes, except for a previous motion for a finding of not guilty.

Question 8

When can a judge change a previous ruling?

Answer 8

Any time during the trial.

Question 9

What is the appropriate forum for questions of law, interlocutory questions, and instructions?

Answer 9

Article 39(a) hearings, i.e. hearings without members present.

Question 10

What standard of proof is used in determining questions of fact?

Answer 10

A preponderance of the evidence.

Question 11

Who holds the burden of persuasion absent an instruction in the MCM?

Answer 11

The moving or objecting party.

Question 12

What are included as questions or law or interlocutory questions?

Answer 12

Everything in the trial with the exception of the findings, sentence and administrative matters.

Question 13

A question is interlocutory unless what?

Answer 13

The ruling on it would finally decide whether the accused is guilty. This includes questions of law.

Question 14

Following an Article 39(a) session, what must occur?

Answer 14

The ruling or instructions of the judge must be made on the record in the presence of the parties and the members.

Question 15

Where must an RCM 802 conference be held?

Answer 15

Anywhere, by in-person or telephonic means.

Question 16

Must RCM 802 conferences be on the record?

Answer 16

No, but the judge should summarize the 802 conference on the record. Failure to object to the summation’s accuracy constitutes waiver.

Question 17

Must an accused by present at an RCM 802 conference?

Answer 17

No. It is not required nor prohibited.

Question 18

If the accused makes an admission during an RCM 802 conference, can it be used against the accused?

Answer 18

No, unless the admission is reduced to writing and signed by the accused and counsel.

Question 19

Between what two events can a judge call an Art. 39(a) session?

Answer 19

A judge may call an Art. 39(a) session anytime between referral/service of charges on the accused and before the Entry of Judgement.

Question 20

Who must be present at an Art. 39(a) session?

Answer 20

The judge, the accused, the defense counsel, and the trial counsel.

Question 21

What is the purpose of an Art. 39(a) session?

Answer 21

To do anything that does not require the presence of the members.

Question 22

Is an accused who is travelling in order to attend military justice proceedings given travel allowances?

Answer 22

Yes

Question 23

May Art. 39(a) sessions be conducted by remote means?

Answer 23

Yes.

Question 24

When will the trial of an accused continue without the presence of the accused?

Answer 24

When the accused waives the right to be present by either 1) being voluntarily absent after arraignment; or 2) is disruptive and is removed from the courtroom.

Question 25

Can the accused waive the right to be present at their trial?

Answer 25

Yes

Question 26

Is there a right to be absent from one’s trial?

Answer 26

No. The accused can be required to be present over their objection.

Question 27

When will a judge allow an accused to waive their right to be present?

Answer 27

The judge will permit the accused to waive their right to be present upon a showing of good cause.

Question 28

What is the difference between waiver of the right to be present and voluntary absence?

Answer 28

Waiver means the ability of the accused to leave; voluntary absence means the accused never showed up despite knowledge of the date and time of the proceedings.

Question 29

Can an accused who is in custody of the military authorities be voluntarily absent from their trial?

Answer 29

Yes, but only with permission of the judge on the record.

Question 30

What can the accused do in regards to when a child witness is called to the stand?

Answer 30

The accused can choose to absent himself from the courtroom in order to afford the child witness the ability to testify in-person. When this occurs, the accused typically has their image projected into the courtroom using remote technology, but this can be made into a one-way communication of the witness to the accused, but not the accused into the courtroom, at the discretion of the judge.

Question 31

Who is responsible for ensuring the accused is properly attired?

Answer 31

Under the MCM, the defense counsel and accused.

Question 32

Can the accused by compelled to wear the proper uniform and present good military appearance?

Answer 32

Yes.

Question 33

When can the accused appear in open court wearing restraints?

Answer 33

Only when authorized by the military judge.

Question 34

What court-martial procedures can take place outside the presence of the military judge?

Answer 34

Only member deliberations.

Question 35

When can an accused’s assistant defense counsel be absent from a proceeding?

Answer 35

Only where the accused expressly consents to the absence. Otherwise, all of the accused’s defense counsel must be present at all proceedings.

Question 36

A member of the panel has been excused after the presentation of the evidence has begun. What must occur now?

Answer 36

The evidence and testimony of the trial on the merits, if recorded verbatim, must be played or read for the new member in the presence of the military judge, the accused, and counsel for both sides.

Question 37

If a new member is impaneled after the presentation of the evidence has begun, and the testimony and evidence was not recorded verbatim, what must occur?

Answer 37

The presentation of the evidence must being again from the start.

Question 38

In a judge-alone trial, a military judge has been replaced by another judge after the presentation of the evidence has begun. What must occur now?

Answer 38

The accused must request trial by judge alone, the judge must approve, and a verbatim record of the testimony and evidence must be read to or played for the new judge in the presence of counsel for both sides and the accused. Otherwise, the presentation of the evidence starts over again.

Question 39

When might a victim of an offense be excluded from a court-martial?

Answer 39

Only when the military judge finds by clear and convincing evidence that the testimony of the victim would be materially altered if the victim heard other testimony at the hearing or proceeding.

Question 40

What does “re-hearing” mean under the MCM?

Answer 40

An appellate court or reviewing authority has ordered that the court-martial on the merits be redone.

Question 41

An accused who pleaded guilty is having a re-hearing on their sentence. Can the accused withdraw their guilty plea at the sentenc rehearing?

Answer 41

No

Question 42

Can new charges be referred to a re-hearing?

Answer 42

Yes

Question 43

What is a “remand?”

Answer 43

Where an appellate court sends the case back to a court-martial for additional fact-finding. The purpose of the remand is not to engage in fact-finding which could have been uncovered through a party’s exercise of reasonable diligence.

Question 44

To what can a party make a stipulation to?

Answer 44

Any fact, contents of a document, or the expected testimony of a witness.

Question 45

In what form can a stipulation take?

Answer 45

Oral or written.

Question 46

Must a judge accept a stipulation?

Answer 46

No. It is discretionary.

Question 47

What is the remedy for a stipulation which is rejected?

Answer 47

A continuance is granted.

Question 48

When can an accused withdraw from a stipulation?

Answer 48

Any time before the stipulation is accepted.

Question 49

When can an accused withdraw from a stipulation after it has already been accepted by the military judge?

Answer 49

Only when the judge approves at his discretion.

Question 50

What is a common trial?

Answer 50

A trial in which two or more accused are tried for an offense or offenses which, although not jointly committed, were committed at the same time and place and are provable by the same evidence.

Question 51

What is a joint trial?

Answer 51

A trial where two or more accused are charged with a joint offense, that is, one on which they acted together with a common purpose.