2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
R.C.M. 910(h)(2) which a finding is based, the military judge shall inquire into the providence of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through lack of understanding of its meaning and effect a plea of not guilty shall b e e n t e r e d a s t o t h e a f f e c t e d c h a r g e s a n d specifications. Discussion When the accused withdraws a previously accepted plea for guilty or a plea of guilty is set aside, counsel should be given a reasonable time to prepare to proceed. In a trial by military judge alone, recusal of the military judge or disapproval of the request for trial by military judge alone will ordinarily be necessary when a plea is rejected or withdrawn after findings; in trial with members, a mistrial will ordinarily be necessary. (3) Pretrial agreement inquiry. After sentence is announced the military judge shall inquire into any p a r t s o f a p r e t r i a l a g r e e m e n t w h i c h w e r e n o t previously examined by the military judge. If the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge shall conform, with the consent of the Government, the agreement to the accused’s understanding or permit the accused to withdraw the plea. Discussion See subsection (f)(3) of this rule. (i) Record of proceedings. A verbatim record of the guilty plea proceedings shall be made in cases in which a verbatim record is required under R.C.M. 1103. In other special courts-martial, a summary of the explanation and replies shall be included in the record of trial. As to summary courts-martial, see R.C.M. 1305. (j) Waiver. Except as provided in subsection (a)(2) of this rule, a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made. Rule 911. Assembly of the court-martial The military judge shall announce the assembly of the court-martial. II-102 Discussion When trial is by a court-martial with members, the court-martial is ordinarily assembled immediately after the members are sworn. The members are ordinarily sworn at the first session at which they appear, as soon as all parties and personnel have been announced. The members are seated with the president, who is the senior member, in the center, and the other members alternately to the president’s right and left according to rank. If the rank of a member is changed, or if the membership of the court-martial changes, the members should be reseated accordingly. When trial is by military judge alone, the court-martial is ordinarily assembled immediately following approval of the request for trial by military judge alone. Assembly of the court-martial is significant because it marks the point after which: substitution of the members and military judge may no longer take place without good cause (see Article 29; R.C.M. 505; 902; 912); the accused may no longer, as a matter of right, request trial by military judge alone or withdraw s u c h a r e q u e s t p r e v i o u s l y a p p r o v e d ( s e e A r t i c l e 1 6 ; R . C . M . 903(a)(2)(d)); and the accused may no longer request, even with the permission of the military judge, or withdraw from a request for, enlisted members (see Article 25(c)(1); R.C.M. 903(a)(1)(d)). Rule 912. Challenge of selection of members; examination and challenges of members (a) Pretrial matters. (1) Questionnaires. Before trial the trial counsel may, and shall upon request of the defense counsel, submit to each member written questions requesting the following information: (A) Date of birth; (B) Sex; (C) Race; (D) Marital status and sex, age, and number of dependents; (E) Home of record; (F) Civilian and military education, including, w h e n a v a i l a b l e , m a j o r a r e a s o f s t u d y , n a m e o f school or institution, years of education, and degrees received; (G) Current unit to which assigned; (H) Past duty assignments; (I) Awards and decorations received; (J) Date of rank; and (K) Whether the member has acted as accuser, counsel, investigating officer, convening authority, or legal officer or staff judge advocate for the con-
vening authority in the case, or has forwarded the charges with a recommendation as to disposition. Additional information may be requested with the approval of the military judge. Each member’s responses to the questions shall be written and signed by the member. Discussion Using questionnaires before trial may expedite voir dire and may permit more informed exercise of challenges. If the questionnaire is marked or admitted as an exhibit at the court-martial it must be attached to or included in the record of trial. See R.C.M. 1103(b)(2)(D)(iv) and (b)(3)(B). ( 2 ) O t h e r m a t e r i a l s . A c o p y o f a n y w r i t t e n materials considered by the convening authority in selecting the members detailed to the court-martial shall be provided to any party upon request, except that such materials pertaining solely to persons who were not selected for detail as members need not be provided unless the military judge, for good cause, so directs. (b) Challenge of selection of members. (1) Motion. Before the examination of members under subsection (d) of this rule begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly. Discussion See R.C.M. 502(a) and 503(a) concerning selection of members. Members are also improperly selected when, for example, a certain group or class is arbitrarily excluded from consideration as members. (2) Procedure. Upon a motion under subsection (b)(1) of this rule containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party shall be entitled to present evidence, including any written materials considered by the convening authority in selecting the members. Any other party may also present evidence on the matter. If the military judge determines that the members have been selected improperly, the military judge shall stay any proceedi n g s r e q u i r i n g t h e p r e s e n c e o f m e m b e r s u n t i l members are properly selected. R.C.M. 912(f) ( 3 ) W a i v e r . F a i l u r e t o m a k e a t i m e l y m o t i o n under this subsection shall waive the improper select i o n u n l e s s i t c o n s t i t u t e s a v i o l a t i o n o f R . C . M . 501(a), 502(a)(1), or 503(a)(2). (c) Stating grounds for challenge. The trial counsel s h a l l s t a t e a n y g r o u n d f o r c h a l l e n g e f o r c a u s e against any member of which the trial counsel is aware. ( d ) E x a m i n a t i o n o f m e m b e r s . T h e m i l i t a r y j u d g e may permit the parties to conduct the examination of members or may personally conduct the examination. In the latter event the military judge shall permit the parties to supplement the examination by such further inquiry as the military judge deems p r o p e r o r t h e m i l i t a r y j u d g e s h a l l s u b m i t t o t h e members such additional questions by the parties as the military judge deems proper. A member may be questioned outside the presence of other members when the military judge so directs. Discussion Examination of the members is called “voir dire.” If the members have not already been placed under oath for the purpose of voir dire (see R.C.M. 807(b)(2) Discussion (B)), they should be sworn before they are questioned. The opportunity for voir dire should be used to obtain information for the intelligent exercise of challenges; counsel should not purposely use voir dire to present factual matter which will not be admissible or to argue the case. The nature and scope of the examination of members is within the discretion of the military judge. Members may be questioned individually or collectively. Ordinarily, the military judge should permit counsel to personally question the members. Trial counsel ordinarily conducts an inquiry before the defense. Whether trial counsel will question all the members before the defense begins or whether some other procedure will be followed depends on the circumstances. For example, when members are questioned individually outside the presence of other members, each party would ordinarily complete questioning that member before another member is questioned. The military judge and each party may conduct additional questioning, after initial questioning by a party, as necessary. Ordinarily the members should be asked whether they are aware of any ground for challenge against them. This may expedite further questioning. The members should be cautioned, howe v e r , n o t t o d i s c l o s e i n f o r m a t i o n i n t h e p r e s e n c e o f o t h e r members which might disqualify them. (e) Evidence. Any party may present evidence relating to whether grounds for challenge exist against a member. (f) Challenges and removal for cause. II-103
- Page 103 and 104: is a member shall be reasonably ava
- Page 105 and 106: vening authority may include proper
- Page 107 and 108: withdrawn charges or specifications
- Page 109 and 110: information which is under the cont
- Page 111 and 112: gated the disadvantage caused by th
- Page 113 and 114: forward it to the authority who ord
- Page 115 and 116: shall grant a continuance or other
- Page 117 and 118: attendance of civilian witnesses ma
- Page 119 and 120: ney General of the United States or
- Page 121 and 122: period of suspension of the sentenc
- Page 123 and 124: Discussion Based on the report, fur
- Page 125 and 126: CHAPTER VIII. TRIAL PROCEDURE GENER
- Page 127 and 128: making the motion or raising the ob
- Page 129 and 130: ight to be present. See also R.C.M.
- Page 131 and 132: An assistant counsel who lacks the
- Page 133 and 134: Rule 807. Oaths (a) Definition. “
- Page 135 and 136: t h e m i l i t a r y j u d g e s h
- Page 137 and 138: Rule 811. Stipulations (a) In gener
- Page 139 and 140: CHAPTER IX. TRIAL PROCEDURES THROUG
- Page 141 and 142: (1) “Proceeding” includes pretr
- Page 143 and 144: Rule 905. Motions generally (a) Def
- Page 145 and 146: determination and the grounds for i
- Page 147 and 148: trial be tried separately. Such a r
- Page 149 and 150: out trial of a deserter by a genera
- Page 151 and 152: against them or to conduct or coope
- Page 153: vening authority, or trial counsel,
- Page 157 and 158: cise a peremptory challenge before
- Page 159 and 160: (5) Reopening case. The military ju
- Page 161 and 162: good character, see Mil. R. Evid. 4
- Page 163 and 164: Discussion The defense of accident
- Page 165 and 166: (l) Not defenses generally. (1) Ign
- Page 167 and 168: erly before the court-martial on th
- Page 169 and 170: equested by a party or which the mi
- Page 171 and 172: not for the purpose of rendering a
- Page 173 and 174: “conviction” includes any dispo
- Page 175 and 176: section (c)(3) of this rule, they m
- Page 177 and 178: Discussion A fine is in the nature
- Page 179 and 180: and desertion (see paragraph 9, Par
- Page 181 and 182: ( 4 ) N e c e s s a r y f i n d i n
- Page 183 and 184: cused knowingly created a grave ris
- Page 185 and 186: (d) Voting. (1) Duty of members. Ea
- Page 187 and 188: (B) With a view to decreasing. Memb
- Page 189 and 190: eported in the convening authority
- Page 191 and 192: u n l e s s t h e s e n t e n c e p
- Page 193 and 194: o n d e f e n s e c o u n s e l i n
- Page 195 and 196: Appeals. Before review, if any, by
- Page 197 and 198: the court-martial or in writing, th
- Page 199 and 200: the period in which comments may be
- Page 201 and 202: Discussion The method of service an
- Page 203 and 204: mental capacity of the accused, the
vening authority in the case, or has forwarded the<br />
charges with a recommendation as to disposition.<br />
Additional information may be requested with the<br />
approval of the military judge. Each member’s responses<br />
to the questions shall be written and signed<br />
by the member.<br />
Discussion<br />
Using questionnaires before trial may expedite voir dire and may<br />
permit more informed exercise of challenges.<br />
If the questionnaire is marked or admitted as an exhibit at<br />
the court-martial it must be attached to or included in the record<br />
of trial. See R.C.M. 1103(b)(2)(D)(iv) and (b)(3)(B).<br />
( 2 ) O t h e r m a t e r i a l s . A c o p y o f a n y w r i t t e n<br />
materials considered by the convening authority in<br />
selecting the members detailed to the court-martial<br />
shall be provided to any party upon request, except<br />
that such materials pertaining solely to persons who<br />
were not selected for detail as members need not be<br />
provided unless the military judge, for good cause,<br />
so directs.<br />
(b) Challenge of selection of members.<br />
(1) Motion. Before the examination of members<br />
under subsection (d) of this rule begins, or at the<br />
next session after a party discovered or could have<br />
discovered by the exercise of diligence, the grounds<br />
therefor, whichever is earlier, that party may move<br />
to stay the proceedings on the ground that members<br />
were selected improperly.<br />
Discussion<br />
See R.C.M. 502(a) and 503(a) concerning selection of members.<br />
Members are also improperly selected when, for example, a certain<br />
group or class is arbitrarily excluded from consideration as<br />
members.<br />
(2) Procedure. Upon a motion under subsection<br />
(b)(1) of this rule containing an offer of proof of<br />
matters which, if true, would constitute improper<br />
selection of members, the moving party shall be<br />
entitled to present evidence, including any written<br />
materials considered by the convening authority in<br />
selecting the members. Any other party may also<br />
present evidence on the matter. If the military judge<br />
determines that the members have been selected improperly,<br />
the military judge shall stay any proceedi<br />
n g s r e q u i r i n g t h e p r e s e n c e o f m e m b e r s u n t i l<br />
members are properly selected.<br />
R.C.M. 912(f)<br />
( 3 ) W a i v e r . F a i l u r e t o m a k e a t i m e l y m o t i o n<br />
under this subsection shall waive the improper select<br />
i o n u n l e s s i t c o n s t i t u t e s a v i o l a t i o n o f R . C . M .<br />
501(a), 502(a)(1), or 503(a)(2).<br />
(c) Stating grounds for challenge. The trial counsel<br />
s h a l l s t a t e a n y g r o u n d f o r c h a l l e n g e f o r c a u s e<br />
against any member of which the trial counsel is<br />
aware.<br />
( d ) E x a m i n a t i o n o f m e m b e r s . T h e m i l i t a r y j u d g e<br />
may permit the parties to conduct the examination of<br />
members or may personally conduct the examination.<br />
In the latter event the military judge shall permit<br />
the parties to supplement the examination by<br />
such further inquiry as the military judge deems<br />
p r o p e r o r t h e m i l i t a r y j u d g e s h a l l s u b m i t t o t h e<br />
members such additional questions by the parties as<br />
the military judge deems proper. A member may be<br />
questioned outside the presence of other members<br />
when the military judge so directs.<br />
Discussion<br />
Examination of the members is called “voir dire.” If the members<br />
have not already been placed under oath for the purpose of voir<br />
dire (see R.C.M. 807(b)(2) Discussion (B)), they should be sworn<br />
before they are questioned.<br />
The opportunity for voir dire should be used to obtain information<br />
for the intelligent exercise of challenges; counsel should<br />
not purposely use voir dire to present factual matter which will<br />
not be admissible or to argue the case.<br />
The nature and scope of the examination of members is<br />
within the discretion of the military judge. Members may be<br />
questioned individually or collectively. Ordinarily, the military<br />
judge should permit counsel to personally question the members.<br />
Trial counsel ordinarily conducts an inquiry before the defense.<br />
Whether trial counsel will question all the members before the<br />
defense begins or whether some other procedure will be followed<br />
depends on the circumstances. For example, when members are<br />
questioned individually outside the presence of other members,<br />
each party would ordinarily complete questioning that member<br />
before another member is questioned. The military judge and<br />
each party may conduct additional questioning, after initial questioning<br />
by a party, as necessary.<br />
Ordinarily the members should be asked whether they are<br />
aware of any ground for challenge against them. This may expedite<br />
further questioning. The members should be cautioned, howe<br />
v e r , n o t t o d i s c l o s e i n f o r m a t i o n i n t h e p r e s e n c e o f o t h e r<br />
members which might disqualify them.<br />
(e) Evidence. Any party may present evidence relating<br />
to whether grounds for challenge exist against a<br />
member.<br />
(f) Challenges and removal for cause.<br />
II-103