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2008 edition - Fort Sam Houston - U.S. Army

2008 edition - Fort Sam Houston - U.S. Army

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withdrawn charges or specifications may not be considered for<br />

any reason.<br />

(b) Referral of withdrawn charges. Charges which<br />

have been withdrawn from a court-martial may be<br />

r e f e r r e d t o a n o t h e r c o u r t - m a r t i a l u n l e s s t h e<br />

withdrawal was for an improper reason. Charges<br />

withdrawn after the introduction of evidence on the<br />

general issue of guilt may be referred to another<br />

court-martial only if the withdrawal was necessitated<br />

by urgent and unforeseen military necessity.<br />

Discussion<br />

See also R.C.M. 915 (Mistrial).<br />

When charges which have been withdrawn from a courtmartial<br />

are referred to another court-martial, the reasons for the<br />

withdrawal and later referral should be included in the record of<br />

the later court-martial, if the later referral is more onerous to the<br />

accused. Therefore, if further prosecution is contemplated at the<br />

R.C.M. 604(b)<br />

time of the withdrawal, the reasons for the withdrawal should be<br />

included in or attached to the record of the earlier proceeding.<br />

Improper reasons for withdrawal include an intent to interfere<br />

with the free exercise by the accused of constitutional or<br />

c o d a l r i g h t s , o r w i t h t h e i m p a r t i a l i t y o f a c o u r t - m a r t i a l . A<br />

withdrawal is improper if it was not directed personally and<br />

independently by the convening authority or by a superior competent<br />

authority.<br />

Whether the reason for a withdrawal is proper, for purposes<br />

of the propriety of a later referral, depends in part on the stage in<br />

the proceedings at which the withdrawal takes place. Before arraignment,<br />

there are many reasons for a withdrawal which will<br />

not preclude another referral. These include receipt of additional<br />

charges, absence of the accused, reconsideration by the convening<br />

authority or by a superior competent authority of the seriousness<br />

of the offenses, questions concerning the mental capacity of the<br />

accused, and routine duty rotation of the personnel constituting<br />

the court-martial. Charges withdrawn after arraignment may be<br />

referred to another court-martial under some circumstances. For<br />

example, it is permissible to refer charges which were withdrawn<br />

pursuant to a pretrial agreement if the accused fails to fulfill the<br />

terms of the agreement. See R.C.M. 705. Charges withdrawn after<br />

some evidence on the general issue of guilty is introduced may be<br />

re-referred only under the narrow circumstances described in the<br />

rule.<br />

II-55

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