RCMs: Trial Procedures Through Findings Flashcards
1
Q
Can accused officers request the members of their court-martial be up to one-third enlisted?
A
No. Only enlisted can request that there be enlisted members on their panel.
2
Q
If an accused makes no forum selection, what occurs?
A
The accused will be tried by a court-martial comprised of members and a military judge.
3
Q
When does the military judge inquire about the accused’s forum selection?
A
Before assembly of the court-martial.
4
Q
When can an accused withdraw a request for a specific panel composition?
A
Prior to the end of the Art. 39(a) session, or if there is no Art. 39(a) session, any time before assembly.
5
Q
When can an accused withdraw a request for a judge-alone trial?
A
Any time before it is accepted, or if it has already been accepted, the accused may withdraw from it if a new military judge is detailed.
6
Q
When is an accused asked to plead?
A
At the arraignment.
7
Q
When is the arraignment completed?
A
When the accused is asked to plead.
8
Q
Is the entry of pleas a part of the arraignment?
A
No
9
Q
Some motions/requests/objections/defenses must be made prior to the entry of pleas. What are they?
A
Defenses or objections based on defects in the preferral, forwarding, or referral of charges.
Defenses or objections based on defects in the preliminary hearing.
Defenses or objections based on defects in the charges and specifications.
Motions to suppress evidence.
Motions for discovery or production of witnesses or evidence.
Motions for severance of charges or accused.
Objections based on denial of request for individual military counsel or for retention of detailed defense counsel.
10
Q
What is a motion?
A
A request to the military judge for particular relief.
11
Q
What is the preferred medium of a motion?
A
Oral. Motions may be written at the discretion of the judge.
12
Q
What must be contained in a motion?
A
The grounds on which it is made; and
The ruling or relief sought.
13
Q
What controls, a motion’s substance or form/designation?
A
The substance.
14
Q
What is the standard of proof on any factual issue the resolution of which is necessary to decide a motion?
A
Preponderance of the evidence.
15
Q
Who holds the burden of persuasion on any factual issue the the resolution of which is necessary to decide a motion?
A
Unless otherwise stated, the moving party.
16
Q
A motion made before pleas must be determined when?
A
Before pleas are entered.
17
Q
When factual issues are involved in determining a motion, what must the judge do?
A
The judge must state the essential findings of fact on the record.
18
Q
Failure to raise defenses or objections or to make requests or motions which must be made prior to the entry of pleas results in what?
A
A forfeiture of the defense or objection.
19
Q
When may a judge permit the parties to make a motion, objection, defense or request outside the normal timelines?
A
For good cause.
20
Q
Aside from motions/objections/defenses/requests that must be filed prior to pleas, when must motions, requests, defenses or objections be made?
A
Before the adjournment of the court-martial.
21
Q
When can a motion to dismiss for lack of jurisdiction or failure to state an offense be made?
A
At any time.
22
Q
At what point can a judge no longer reconsider any ruling?
A
At the entry of judgement.
23
Q
When can a written motion be submitted to a military judge?
A
After referral.
24
Q
Who may request oral argument on a motion?
A
Either party.
25
To whom should a written motion be served?
All other parties. The motion must also be submitted to the judge. So really all parties and judge.
26
If a motion is made pre-trial to the convening authority, and the convening authority denies it, what can the moving party do?
Wait until the proper time to make the motion to the military judge.
27
What is a Motion for Appropriate Relief?
A request for a ruling to cure a defect which deprives a party of a right or hinders a party from preparing for trial or presenting its case.
28
What types of remedies may be requested in a motion for appropriate relief?
Continuances
Include a record of denial of IMC or civilian counsel in the record of trial.
Correction of defects in the Art. 32 preliminary hearing or pretrial advice.
Amendment of charges or specifications.
Severance of a duplicitous specification into two or more specifications.
Request for a bill of particulars.
Request for discovery and production of evidence and witnesses.
Relief from pretrial confinement.
Severance of multiple accused.
Severance of offenses.
Change of place of trial.
Unreasonable multiplication of charges.
Preliminary rulings on the admissibility of evidence.
Motions related to mental capacity or responsibility of the accused.
29
What is the standard for determining whether a continuance should be granted?
Reasonable cause.
30
How long can a continuance be for?
For as long as is just.
31
What are some reasons for requesting a continuance?
Insufficient time to prepare for trial, unavailability of an essential witness, illness of an accused, counsel, judge, or member. (This list is not exhaustive).
32
When a specification is amended after an accused has already entered a plea to it, what is the result?
The accused should enter a new plea to the amended charge.
33
How many offenses can a specification state?
Only one. Ever.
34
What is a duplicitous specification?
A specification which states two or more offenses under the same specification.
35
Is a lesser included offense considered a separate offense for the purposes of duplicity?
No.
36
What is the remedy for a duplicitous specification?
Severance of the specification into two or more specifications.
37
What is the purpose of a bill of particulars?
To inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of another prosecution for the same offense when the specification is too vague and indefinite for such purposes.
38
When will a motion for appropriate relief to sever multiple accused be approved?
When it appears that an accused or the government is prejudiced by a joint or common trial, i.e. good cause is shown.
39
When will a motion for appropriate relief for severance of offenses be granted?
When it will prevent manifest injustice.
40
When will a motion for appropriate relief for unreasonable multiplication of charges be granted?
Where charges that arise from substantially the same transaction, while not legally multiplicitous, are unreasonably multiplied as to the findings.
41
What is the remedy for unreasonable multiplication of charges?
Dismissal of the lesser offenses or merger of the offenses into one specification.
42
What is a motion to dismiss?
A request to terminate further proceedings as to one or more charges and specifications on grounds capable of resolution without trial of the general issue of guilt.
43
What are the two types of grounds on which a motion to dismiss can be based on?
Waivable grounds, unwaivable grounds, and permissible grounds.
44
What are the unwaivable grounds on which a motion to dismiss may be based on?
Lack of jurisdiction to try the accused.
45
What are grounds on which a motion to dismiss may be based that are waivable by the accused?
Dismissals required under RCM 707 (speedy trial violations).
The statute of limitations has run on an offense.
The accused has already been tried by court-martial (presentation of the evidence has begun in a judge-alone trial OR the members have been impaneled in a members trial) or a federal court for the same offense.
Prosecution is barred by a pardon from the president, immunity of the accused, or prior punishment has already been initiated under Article 13 or 15.
The specification fails to state an offense.
46
What is the general statute of limitations for most UCMJ offenses?
Five years. The officer exercising summary court-martial jurisdiction must receive sworn charges within five years of the offense occurring.
47
What are the permissible grounds for making a motion to dismiss?
The charge or specification is defective such that it misleads the accused and in the interests of justice, trial should continue on the other charges and specifications; and
Multiplicity of offenses.
48
When is a charge multiplicitous?
If the proof of that charge also proves every element of another charge.
49
When is the most appropriate time to dismiss a charge for being multiplicitous?
After findings have been reached, since the findings determine whether all the elements of one offense are also those of another charged offense.
50
What kinds of rulings or orders are capable of being appealed by the government?
Rulings/orders which terminate the proceedings with respect to a charge or specification.
Orders/rulings which exclude evidence that is substantial proof of a fact material in the proceedings.
Orders/rulings which order the disclosure of, or impose sanctions for nondisclosure of, classified information.
51
May the government appeal a ruling or order that is, or amounts to, a finding of not guilty made by a military judge?
Generally, no.
52
When can the government appeal a ruling or order which is, or amounts to, a finding of not guilty made by a military judge?
When the ruling or order is entered by the judge following a finding of guilty by the members of the court-martial.
53
How long does the government have in order to file a notice of appeal of a ruling or order which is capable of being appealed by the government?
72 hours of the issuing of the order or ruling.
54
What must a person be capable of doing in order to be considered competent to stand trial?
They must be capable of understanding the nature of the proceedings against them or to conduct or cooperate intelligently in the defense of the case.
55
An accused is determined to be mentally incompetent to stand trial. What can the convenining authority do?
The CA can either agree with the conclusion of the board, or they can disagree with the conclusion of the board and refer charges against the accused.
56
If a convening authority agrees with the results of the board which determines the mental competency of the accused, what should they do?
They must forward the charges to the general court-martial convening authority for determination as to the disposition of the charges.
57
What can the GCMCA do if they are forwarded charges from a subordinate convening authority because the subordinate agreed with a finding of a board that an accused is not competent to stand trial?
They can choose to refer charges against the accused, or agree with the findings of the board and forward the accused to the custody of the U.S. Attorney General.
58
Aside from a board, when can the accused’s mental capacity be determined?
After referral, by the military judge either by motion of the parties or sua sponte.
59
What is the standard of proof in determining whether the accused is suffering from a mental defect or disease?
Preponderance of the evidence.
60
In what ways can an accused plead?
Guilty
Not guilty of an offense as charged, but guilty of a named lesser included offense.
Guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions.
Not guilty.
61
May a plea be received for an offense for which the mandatory sentence is death?
No
62
What offenses under the UCMJ make death a mandatory sentence?
There are none.
63
When the accused is pleading to a lesser included offense without the use of exceptions or substitutions, what should the defense counsel do?
Provide a written revised specification accurately reflecting the plea and request that the revised specification be included in the record as an appellate exhibit.
64
What is a conditional plea?
A plea where the accused agrees to plead guilty to an offense while reserving the right on further review or appeal, to review the adverse determination of any specified pretrial motion (such as a motion to suppress evidence).
65
Whose permission is necessary to make a conditional plea?
The military judge. The government must also consent to the conditional plea.
66
When can an accused withdraw a guilty plea?
Any time before the sentence is announced.
67
Under what conditions will a military judge allow an accused to withdraw a guilty plea and substitute another plea before the sentence is announced?
For good cause shown.
68
Can objections to factual issues like evidence and foundation be made following the acceptance of a guilty plea?
No. Pleading guilty and having the plea accepted by the court waives all objections to the facts.
69
When is a court-martial comprised of members assembled?
Immediately after the members are sworn, which it typically the first session at which they are present.
70
When a court-martial is comprised of the military judge alone, when is the court-martial assembled?
When the judge accepts the request for a judge-alone trial.
71
The assembly of the court-martial is a significant thing because it marks the point at which the accused can no longer do certain things. What are those things?
The accused can no longer, as a matter of right, request trial by military judge alone;
withdraw a request for a military judge alone trial previously approved; or
withdraw a request for a trial by members.
72
When can the parties see the documents relating to the convening authority’s selection of the members?
Upon request.
73
When can the parties see documents relating to members who were not selected to sit on the panel?
Only when good cause is shown.
74
What is the result of a finding on the part of the military judge that the members of a panel were selected improperly?
The judge will stay the proceedings until the members are selected properly.
75
Who can examine members of the court-martial?
The parties or the military judge.
76
If the military judge examines the members, what may the parties do?
The parties may supplement the questioning of the judge with questions of their own so long as the judge determines the questions are proper.
77
When may a member be questioned outside the presence of the other members?
Only when the military judge so directs.
78
May the accuser sit as a member of a court-martial?
No
79
When are challenges for cause to members typically made?
At the conclusion of examination.
80
Can you challenge a member for cause after the member has already been selected as a member and the trial has begun?
Yes, but only when it becomes apparent that a for-cause challenge exists.
81
Where are challenges to members made?
Outside the presence of the members.
82
Which party enters their challenges first?
The government.
83
Which party holds the burden of showing a member should be dismissed?
The moving party.
84
Can you waive the grounds for challenge?
No.
85
How many peremptory challenges does each side enjoy?
Only one.
86
When are peremptory challenges used?
At any time during voir dire.
87
Must the party using the peremptory challenge state the reason for their challenge?
No.
88
When can a party no longer use their peremptory challenge?
After the presentation of the evidence has begun, except when a new member of the court-martial has been detailed after the presentation of the evidence.
89
How many members are required for a General Court-Martial with a special instruction that the case be tried as capital?
Twelve
90
How many members are required for a non-capital General Court-Martial?
Eight
91
How many members are required for a Special Court-Martial?
Four
92
Who authorizes the military judge to impanel alternate members?
The convening authority.
93
When are the members considered as being impaneled?
When the military judge announces that the members are impaneled.
94
When does the judge announce that the members are impaneled?
After all challenges are exercised and a sufficient number of members remain.
95
When can a member of a GCM be excused and not need to be replaced?
When the GCM is being tried as non-capital, alternate members are not available, there remain at least six members, and in the case of enlisted members being on the panel, there remain at least one third enlisted.
96
What kinds of preliminary instructions may the judge give the members after they are impaneled?
Descriptions of their duties as members, procedures to be followed in the court-martial,etc.
97
How many opening statements may each side make?
Only one.
98
When may the government make its opening statement?
After the preliminary instructions by the judge.
99
When may the Defense make its opening statement?
Either immediately after the government’s opening statement or after the government rests but before the defense begins its presentation of the evidence.
100
What are the permissible topics that can be addressed in opening statements?
What they expect to be offered which they believe in good faith will be available; and
A brief statement of the issues in the case.
101
Who may ask questions of a witness?
The government, the defense, the military judge, and the members.
102
Which exhibits should be marked for identification?
All exhibits referred to in the proceedings, whether admitted into evidence or not.
103
When should an exhibit be marked for identification?
When it is first referred to in the proceedings.
104
Which exhibits are included in the record of trial?
All exhibits referred to, regardless of whether they are admitted into evidence.
105
Which exhibits are admitted into evidence?
Only those which a party has established a proper foundation for, requests that it be admitted into evidence, and which the judge allows into evidence.
106
If a physical object cannot be included in the record of trial, what is the proper solution?
Taking a photograph or photographs of the object and including them in the record of trial so that it can be reviewed on appeal.
107
Can the judge tell the parties that evidence may be objected to?
Yes, but the MCM recommends that the judge allow the parties to try the case without unnecessary interference from the military judge.
108
When can the judge choose to exclude evidence without there first being an objection from the parties?
When the evidence can be properly objected to and the judge decides there are extraordinary circumstances that justify him excluding evidence.
109
Once a party has rested, can it reopen its case?
Yes, but only with the approval of the military judge.
110
Explain the Jencks Act and what it does.
It is embodied in RCM 914, which requires that after a witness other than the accused has testified on direct examination, the military judge, upon motion from a party who did not call the witness, may require the party who called the witness to produce all statements previously made by the witness on the subject matter of their direct examination.
111
What statements are the parties required to turn over in a motion under RCM 914?
Only those statements which are in the non-moving party’s possession.
112
How much of a statement requested by a party under RCM 914 must be given over to the moving party?
Only those parts which relate to the subject matter on which the witness testified on direct examination.
113
If a statement of a witness who has testified on direct examination and which is requested by the moving party under RCM 914 does not entirely relate to the subject matter of the witness’s testimony, what is the procedure for producing the statement?
The party turning over the statement must bring the statement to the military judge, who will then redact the non-relevant portions of the statement. The statement will then be given to the moving party. In the case of the government turning over a statement to the defense, the government must retain the redacted portions so that if the accused is convicted, the appellate court can properly review the propriety of the trial judge’s redactions.
114
What is the remedy for a party refusing to comply with an order from the military judge to produce a statement under RCM 914?
The military judge may order the testimony of the witness be disregarded by the trier of fact. If the government refuses to hand over a statement to the accused, the judge may declare a mistrial if justice so requires.
115
Does the Jencks Act/RCM 914 apply at a preliminary hearing?
No
116
What kinds of statements are required to be turned over under RCM 914/The Jencks Act?
Written statements made by the witness that is signed or otherwise adopted/approved by the witness;
A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the statement and contained in a recording or a transcription thereof; or
A statement, however recorded, or a transcript thereof, made by the witness to a federal grand jury.
117
When may a judge declare a mistrial?
When it is manifestly necessary in the interests of justice and the circumstances of the trial cast substantial doubt on the fairness of the proceedings.
118
For what can a mistrial be declared?
For all charges, for some charges but not others, to the entire proceeding, or only to the proceedings after the findings.
119
What is the effect of a mistrial?
The affected charges and specifications are withdrawn from the court-martial.
120
When does a declaration of mistrial prevent the charges from being referred to another court-martial?
When the declaration of mistrial was made after jeopardy attached, and before findings, and the declaration was made as a result of 1) an abuse of discretion and without the consent of the defense; or 2) the direct result of prosecutorial misconduct designed to necessitate a mistrial.
121
What is another name for a “special defense?”
An affirmative defense.
122
What does an affirmative defense do?
It does not deny the accused did the acts alleged. Instead, it denies criminal responsibility for the acts.
123
Who has the burden of proof in regards to affirmative defenses?
The government always has the burden of proof in proving guilt. In regards to special defenses, the government bears the burden of proving not that the acts happened, but that the affirmative defense did not exist.
124
Who bears the burden of proving lack of mental responsibility?
The accused.
125
What is the standard of proof required to show the accused lacked mental responsibility?
Clear and convincing evidence.
126
Who bears the burden of proving mistake of age?
The accused.
127
What is the standard of proof required to show the accused mistook the age of the victim?
A preponderance of the evidence.
128
How many affirmative defenses may the accused raise as to an offense?
As many as you want.
129
Must multiple affirmative defenses be logically consistent with one another?
No.
130
Which rule under the RCMs includes the affirmative defenses recognized at courts-martial?
RCM 916.
131
Who determines whether an order is lawful in regards to an affirmative defense of Obedience to Orders?
The military judge.
132
Under what circumstances can the judge enter a finding of not guilty?
On a motion by the accused or sua sponte, if the evidence is insufficient to sustain a conviction of the charged offense.
133
At what time can a judge enter a finding of not guilty?
Any time after the evidence on either side is closed but prior to entry of judgment.
134
In a trial with members, what is the process for making a motion for a finding of not guilty?
The same as with a judge-alone trial, but the judge may reserve making a ruling on the motion until after the members return findings and before the entry of judgment.
135
What is the standard used by the judge in determining whether the grant a motion for a finding of not guilty?
Only where there is evidence absent which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every element of an offense charged. The evidence is to be viewed in the light most favorable to the government without an evaluation of the credibility of the witnesses.
136
Can a ruling granting a motion for a finding of not guilty be reconsidered?
No. The ruling is final.
137
Can a ruling denying a motion for a finding of not guilty be reconsidered?
Yes, but not after the entry of judgment.
138
Words or figures may be excepted from a specification and, if necessary, substituted in their place, so long as what?
So long as the language after it is changed still states an offense for which the accused may be punishable at court-martial.
139
Must an accused be charged with a lesser included offense in order for the accused to be found guilty of that lesser included offense?
No. An accused can be found guilty of an offense, but guilty of a lesser-included offense within that offense without having to be separately charged with that lesser-included offense.
140
What are special findings?
Findings of the military judge as requested by a party.
141
What kinds of courts-martial can return special findings?
Only judge-alone courts-martial.
142
When must special findings be made?
Any time before the entry of judgment.
143
If a request for special findings is made, what may the judge make findings on, and what must the judge make findings on?
The judge may make special findings on any matters of fact reasonably in issue. The judge, if a request for special findings is made, must only make findings as to the offenses for which the accused was convicted.
144
Can members make special findings?
No.
145
On what can a judge base his special findings?
Direct or circumstantial evidence.
146
What can the closing arguments of the parties include?
Reasonable comment on the evidence in the case and inferences made therefrom in support of a party’s theory of the case.
147
What is considered improper argument?
Counsel stating their personal beliefs or opinions as to the truth or falsity of testimony or evidence, the guilt or innocence of the accused, or arguments calculated to inflame passions or prejudices.
148
Can the government comment on the accused’s exercise of the right to remain silent or right to counsel?
No.
149
Can parties cite legal authorities or case law or reference other cases in argument?
No.
150
What is the government’s rebuttal argument generally restricted to?
Only those things which the defense brings up in their closing.
151
If the government brings up new material in their rebuttal, what must occur?
The defense must be allowed a surrebuttal to rebut the new material brought up by the government.
152
What is the remedy for counsel engaging in improper argument that opposing counsel has properly objected to and the judge has sustained?
The judge will instruct the members that they are to disregard the portion of the argument that was improper.
153
When are instructions to the members given?
Either before or after argument, or both, but before the members begin their deliberations.
154
When may the parties submit their requests to the judge for instructions?
At the close of the evidence.
155
What is the contents of a request for instructions?
A request for instructions requests the judge instruct the members on the law set forth in the request.
156
In what forum are requests for instructions handled?
An Art. 39(a) session.
157
Which written requests for instructions are included in the record?
All of them, regardless of whether they are given by the judge.
158
Written requests for instructions are included in the record as what?
Appellate exhibits.
159
When do the members begin their deliberations?
After the judge has given the members their instructions.
160
May appellate exhibits be brought into the deliberation room?
No. The only things the members may bring into the deliberation room is their notes, the exhibits which have been admitted into evidence, and any written instructions.
161
What may the members request of the court-martial during their period for deliberations?
They may request that the court-martial be reopened and new/more evidence be introduced. This is within the discretion of the military judge.
162
How many votes are required to convict the accused?
Three-fourths of the members must vote to convict in order for the accused to be convicted.
163
How many members must vote to sentence the accused to death?
It must be unanimous.
164
When will members vote on whether the accused is convicted of a lesser included offense?
Only when the members have determined that the accused is not guilty of the offense charged.
165
Who announces the findings of the court-martial in a members trial? In a judge-alone?
The senior member; the military judge.
166
May you poll members about how they voted?
No
167
When can the members reconsider any finding made by them?
At any time prior to the announcement of the findings.
