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

R.C.M. 914A(a)(3)
courtroom to allow viewing and hearing of the testimony
by the military judge, the accused, the members,
the court reporter and the public;
(4) The voice of the military judge shall be transmitted
into the remote location to allow control of
the proceedings; and
(5) The accused shall be permitted private, contemporaneous
communication with his counsel.
(b) Definition. As used in this rule, “remote live
testimony” includes, but is not limited to, testimony
by videoteleconference, closed circuit television, or
similar technology.
( c ) P r o h i b i t i o n s . T h e p r o c e d u r e s d e s c r i b e d a b o v e
shall not be used where the accused elects to absent
h i m s e l f f r o m t h e c o u r t r o o m p u r s u a n t t o R . C . M .
804(c).
Rule 914B. Use of remote testimony
(a) General procedures. The military judge shall determine
the procedures used to take testimony via
remote means. At a minimum, all parties shall be
able to hear each other, those in attendance at the
remote site shall be identified, and the accused shall
be permitted private, contemporaneous communication
with his counsel.
(b) Definition. As used in this rule, testimony via
“remote means” includes, but is not limited to, testimony
by videoteleconference, closed circuit television,
telephone, or similar technology.
Rule 915. Mistrial
(a) In general. The military judge may, as a matter
of discretion, declare a mistrial when such action is
manifestly necessary in the interest of justice because
of circumstances arising during the proceedings
which cast substantial doubt upon the fairness
of the proceedings. A mistrial may be declared as to
some or all charges, and as to the entire proceedings
or as to only the proceedings after findings.
Discussion
The power to grant a mistrial should be used with great caution,
under urgent circumstances, and for plain and obvious reasons.
As examples, a mistrial may be appropriate when inadmissible
matters so prejudicial that a curative instruction would be inadequate
are brought to the attention of the members or when memb
e r s e n g a g e i n p r e j u d i c i a l m i s c o n d u c t . A l s o a m i s t r i a l i s
appropriate when the proceedings must be terminated because of
a legal defect, such as a jurisdictional defect, which can be cured;
for example, when the referral is jurisdictionally defective. See
II-108
a l s o R . C . M . 9 0 5 ( g ) c o n c e r n i n g t h e e f f e c t o f r u l i n g s i n o n e
proceeding on later proceedings.
(b) Procedure. On motion for a mistrial or when it
otherwise appears that grounds for a mistrial may
exist, the military judge shall inquire into the views
of the parties on the matter and then decide the
matter as an interlocutory question.
Discussion
Except in a special court-martial without a military judge, the
hearing on a mistrial should be conducted out of the presence of
the members.
(c) Effect of declaration of mistrial.
(1) Withdrawal of charges. A declaration of a
mistrial shall have the effect of withdrawing the
affected charges and specifications from the courtmartial.
Discussion
Upon declaration of a mistrial, the affected charges are returned
to the convening authority who may refer them anew or otherwise
dispose of them. See R.C.M. 401-407.
(2) Further proceedings. A declaration of a mistrial
shall not prevent trial by another court-martial
on the affected charges and specifications except
when the mistrial was declared after jeopardy attached
and before findings, and the declaration was:
( A ) A n a b u s e o f d i s c r e t i o n a n d w i t h o u t t h e
consent of the defense; or
( B ) T h e d i r e c t r e s u l t o f i n t e n t i o n a l
prosecutorial misconduct designed to necessitate a
mistrial.
Rule 916. Defenses
(a) In general. As used in this rule, “defenses” includes
any special defense which, although not denying
that the accused committed the objective acts
constituting the offense charged, denies, wholly or
partially, criminal responsibility for those acts.
Discussion
Special defenses are also called “affirmative defenses.”
“Alibi” and “good character” are not special defenses, as
they operate to deny that the accused committed one or more of
the acts constituting the offense. As to evidence of the accused’s