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

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App. 9 APPENDIX 9 SCM: Do you understand the maximum punishment which this court-martial is authorized to adjudge? ACC: . Plea options SCM: You may plead not guilty or guilty to each offense with which you are charged. You have an absolute right to plead not guilty and to require that your guilt be proved beyond a reasonable doubt before you can be found guilty. You have the right to plead not guilty even if you believe you are guilty. Do you understand that? ACC: . SCM: If you believe you are guilty of an offense, you may, but are not required to, plead guilty to that offense. If you plead guilty to an offense, you are admitting that you committed that offense, and this court-martial could find you guilty of that offense without hearing any evidence, and could sentence you to the maximum penalty I explained to you before. Do you understand that? ACC: . Lesser included offenses SCM: [Examine the list of lesser included offenses under each punitive article alleged to have been violated. See Part IV. If a lesser included offense may be in issue, give the following advice.] You may plead not guilty to Charge , Specification , as it now reads, but plead guilty to the offense of , which is included in the offense charged. Of course, you are not required to do this. If you do, then I can find you guilty of this lesser offense without hearing evidence on it. Furthermore, I could still hear evidence on the greater offense for purposes of deciding whether you are guilty of it. Do you understand that? ACC: . SCM: Do you need more time to consider whether to object to trial by summary court-martial or to prepare for trial? ACC: . SCM: [If time is requested or otherwise appropriate.] We will convene the court-martial at . When we convene, I will ask you whether you object to trial by summary court-martial. If you do not object, I will then ask for your pleas to the charge(s) and specification(s), and for you to make any motions you may have. Trial Proceedings Convene SCM: This summary court-martial is now in session. Objection/consent to trial by SCM A9-4 SCM: Do you object to trial by summary court-martial? ACC: .
GUIDE FOR SUMMARY COURTS-MARTIAL Entries on record of trial [Note 6. If there is an objection, adjourn the court-martial and return the file to the convening authority. If the accused does not object, proceed as follows. The accused may be asked to initial the notation on the record of trial that the accused did or did not object to trial by summary court-martial. This is not required, however.] Readings of the charges SCM: Look at the charge sheet.Have you read the charge(s) and specification(s)? ACC: . SCM: Do you want me to read them to you? ACC: [If accused requests, read the charge(s) and specification(s).] Arraignment SCM: How do you plead? Before you answer that question, if you have any motion to dismiss (the) (any) charge or specification, or for other relief, you should make it now. ACC: . Motions [Note 7. If the accused makes a motion to dismiss or to grant other relief, or such a motion is raised by the summary court-martial, do not proceed with the trial until the motions have been decided. See R.C.M. 905–907, and R.C.M. l304(b)(2)(c). After any motions have been disposed of and if termination of the trial has not resulted, have the accused enter pleas and proceed as indicated below.] Pleas ACC: I plead: . [Note 8. If the accused refuses to plead to any offense charged, enter pleas of not guilty. If the accused refuses to enter any plea, evidence must be presented to establish that the accused is the person named in the specification(s) and is subject to court-martial jurisdiction. See R.C.M. 202, 1301(c)] [Note 9. If the accused pleads not guilty to all offenses charged, proceed to the section entitled “Procedures-Not Guilty Pleas.”] [Note 10. If the accused pleads guilty to one or more offenses, proceed as follows.] Procedures-guilty pleas SCM: I will now explain the meaning and effect of your pleas, and question you so that I can be sure you understand. Refer to the charge(s) and specification(s). I will not accept your pleas of guilty unless you understand their meaning and effect. You are legally and morally entitled to plead not guilty even though you believe you are guilty, and to require that your guilt be proved beyond a reasonable doubt. A plea of guilty is the strongest form of proof known to the law. On your pleas of guilty alone, without receiving any evidence, I can find you guilty of the offense(s) to which you have pleaded guilty. I will not accept your pleas unless you realize that by your pleas you admit every element of the offense(s) to which you have pleaded guilty, and that you are pleading guilty because you really are guilty. If you are not convinced that you are in fact guilty, you should not allow anything to influence you to plead guilty. Do you understand that? ACC: . SCM: Do you have any questions? ACC: . App. 9 A9-5
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MANUAL FOR COURTS-MARTIAL UNITED ST
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PREFACE The Manual for Courts-Marti
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MRE 503 regarding the privilege att
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PART I PREAMBLE 1. Sources of milit
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MCM 2008 (l) Confinement after rele
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MCM 2008 (d) When charges may be re
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MCM 2008 (d) Effect of replacement
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MCM 2008 (b) Refusal to plead; irre
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MCM 2008 Rule 923. Impeachment of f
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MCM 2008 (c) Loss of record. . . .
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MCM 2008 (b) Petition by the accuse
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MCM 2008 SECTION III EXCLUSIONARY R
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MCM 2008 Rule 321. Eyewitness ident
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MCM 2008 Rule 509. Deliberations of
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MCM 2008 (15) Statements in documen
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MCM 2008 c. Explanation. . . . . .
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MCM 2008 a. Text of statute. . . .
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MCM 2008 f. Sample specification. .
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MCM 2008 d. Lesser included offense
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MCM 2008 d. Lesser included offense
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MCM 2008 b. Elements. . . . . . . .
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MCM 2008 f. Sample specification. .
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MCM 2008 a. Notice. . . . . . . . .
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1. Sources of military jurisdiction
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Rule 101. Scope, title (a) In gener
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they remain possessions, but does n
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eviewing authority with respect to
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Discussion Complaints need not be m
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Rule 201. Jurisdiction in general (
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t h i s p o l i c y d o e s n o t a
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with respect to offenders or offens
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p e r s o n s u n d e r t h e l a w
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CHAPTER III. INITIATION OF CHARGES;
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(B) Under exigent circumstances des
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straint, including its terms or lim
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305(i)(1), or this subsection preve
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of evidence or of misconduct which,
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matter shall be forwarded to the ge
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essential to the offense, so they m
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CHAPTER IV. FORWARDING AND DISPOSIT
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the hour and date of receipt to be
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counsel. The investigating officer
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expenses to testify at a pretrial i
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in the Article 32 investigating off
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t h e m a t t e r ) t o a s u b o r
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court-martial without a military ju
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counsel. Responsibility for trial o
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efore assembly, request orally on t
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See also R.C.M. 401(c). Discussion
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is a member shall be reasonably ava
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vening authority may include proper
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withdrawn charges or specifications
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information which is under the cont
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gated the disadvantage caused by th
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forward it to the authority who ord
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shall grant a continuance or other
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attendance of civilian witnesses ma
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ney General of the United States or
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period of suspension of the sentenc
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Discussion Based on the report, fur
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CHAPTER VIII. TRIAL PROCEDURE GENER
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making the motion or raising the ob
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ight to be present. See also R.C.M.
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An assistant counsel who lacks the
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Rule 807. Oaths (a) Definition. “
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t h e m i l i t a r y j u d g e s h
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Rule 811. Stipulations (a) In gener
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CHAPTER IX. TRIAL PROCEDURES THROUG
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(1) “Proceeding” includes pretr
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Rule 905. Motions generally (a) Def
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determination and the grounds for i
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trial be tried separately. Such a r
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out trial of a deserter by a genera
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against them or to conduct or coope
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vening authority, or trial counsel,
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vening authority in the case, or ha
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cise a peremptory challenge before
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(5) Reopening case. The military ju
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good character, see Mil. R. Evid. 4
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Discussion The defense of accident
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(l) Not defenses generally. (1) Ign
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erly before the court-martial on th
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equested by a party or which the mi
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not for the purpose of rendering a
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“conviction” includes any dispo
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section (c)(3) of this rule, they m
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Discussion A fine is in the nature
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and desertion (see paragraph 9, Par
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( 4 ) N e c e s s a r y f i n d i n
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cused knowingly created a grave ris
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(d) Voting. (1) Duty of members. Ea
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(B) With a view to decreasing. Memb
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eported in the convening authority
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u n l e s s t h e s e n t e n c e p
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o n d e f e n s e c o u n s e l i n
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Appeals. Before review, if any, by
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the court-martial or in writing, th
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the period in which comments may be
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Discussion The method of service an
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mental capacity of the accused, the
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e o r d e r e d i f , i n t h e s a
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was disapproved or set aside. The c
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ence of the probationer or to preve
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one year, shall follow that set for
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ted, a waiver or withdrawal in comp
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Discussion A dismissal may not be o
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digency, unless the authority consi
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CHAPTER XII. APPEALS AND REVIEW Rul
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to request that the detailed appell
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T h e a c c u s e d m a y p e t i t
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shall take action under subsection
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e submitted by the accused personal
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CHAPTER XIII. SUMMARY COURTS-MARTIA
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substantial irregularity in the cha
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Discussion See Appendix 15 for a sa
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Rule 101. Scope ( a ) A p p l i c a
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Rule 301. Privilege concerning comp
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evidence would have been obtained e
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agent of a military unit or of a pe
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(3) Evidence that was obtained as a
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Rule 312. Body views and intrusions
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the time of the search. Under norma
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( e ) P o w e r t o s e a r c h . A
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(2) takes place outside the United
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tendency to make the existence of a
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(1) Evidence offered to prove that
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(2) contact between the mouth and t
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Rule 504. Husband-wife privilege (a
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judge to have access to the classif
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any order that the interests of jus
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(A) Finding of identifiable damage.
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sonable period of time disclosure i
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of evidence of a patient’s record
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inadmissible except that a convicti
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Rule 702. Testimony by experts If s
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with the provisions of paragraph (6
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ing in the death of the alleged vic
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and actually recorded or filed in a
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i n g s e x c e p t t h o s e i n w
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1.b.(2)(b)(ii) as a party, where th
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3.b.(2) robbery, but guilty of wron
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5.c.(3) agreement must, at least in
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6.f.(1) or committed, add the follo
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9.a.(a)(3) (3) without being regula
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9.c.(2)(c) ous duty or important se
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10.c.(4)(d) or duty section with th
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11.c. c. Explanation. (1) Movement.
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13.c.(1)(b) prevented. The victim i
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14.c.(2)(b) must be directed specif
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15.b.(3)(f) or was disrespectful to
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16.c.(1)(b) tains its character as
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17.c.(2) even though the duties are
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18.f.(3) with intent to cause the (
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19.c.(5)(c) without force or artifi
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20.e.(3) Dishonorable discharge, fo
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23.b.(2)(c) (c) That this act occur
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23.d.(6)(b) (b) Article 80—attemp
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24.f.(1) of , (to give up to the en
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27.b.(3)(a) otherwise dealt in or d
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28.c.(5)(a) i n f o r m a t i o n v
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30.a. commission and on conviction
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30a.c. c. Explanation. (1) Intent.
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32.c.(2) cludes: deliberate violati
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33.c.(2) this section, the destruct
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34.f.(3) w e e n a n d h o u r s on
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35.e.(1) discharge, forfeiture of a
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37.c.(2) the accused did not know t
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37.f.(3) aircraft, vehicle, or inst
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39.f.(1) (with ), using as weapons
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41.f.(1) w i t h ( a n d ) ( a n d
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43.c.(3)(b) members of the body, se
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44.e. e. Maximum punishment. ( 1 )
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44a.d.(2)(a) (a) Article 119a — k
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45.a.(o)(1) had not attained the ag
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45.a.(t)(12)(B) (B) that other pers
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45.b.(3)(c) ble of appraising the a
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45.b.(8)(c) stantially incapacitate
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45.e.(2)(a) - (f) (2)(a) - (f) Rape
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45.g.(2)(c) 16 years, by causing gr
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45.g.(7)(b)(i) wit: against (him)(h
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45.g.(14) indecent manner (his) (he
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46.c.(1)(c)(ii) ( i i ) O w n e r .
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46.c.(1)(h)(i) the general or speci
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47.c.(3) (3) Fear. For a robbery to
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48.f.(1) (1) Forgery—making or al
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49.c.(13) ( 1 3 ) U p o n i t s p r
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50.f. data, if required) on or abou
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52.f.(1)(b) T h e a t e r ) ( , t h
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54.c.(1)(b)(ii) r e a s o n a b l e
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54.c.(4)(b)(ii) as when the victim
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55.b.(1) ( 1 ) T h a t t h e a c c
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57.b.(1)(c) (c) That the oath or af
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58.b.(3) ( 3 ) M a k i n g o r u s
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58.f.(1) ( f a l s e a n d f r a u
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60.a. be guilty, shall be taken cog
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61. 61. Article 134—(Abusing publ
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64.c.(6) intent to commit sodomy. A
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67.b.(2) the intent to defraud a ce
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68a.f.(2) culpable negligence) (whi
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72.b.(5) discipline in the armed fo
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76.f. w a s , ( a t / o n b o a r d
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79.c.(1) ing under a lawful oath or
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83.c.(1) tion of the custom of the
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89.b.(3) discipline in the armed fo
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93.f.(1) (1) Taking. In that (perso
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96a.b.(2) tain person against whom
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97a.c.(2) role, such as paying rest
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100a.f. f. Sample specification. In
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104.c.(2)(a) graph 38c applies to l
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108.c. charge of wrongful to testif
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110.f. ( a c c u s e o f h a v i n
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PART V NONJUDICIAL PUNISHMENT PROCE
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authority is considering the imposi
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(ii) correctional custody for not m
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(2) a subsequent period of active d
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o f a n y w r i t t e n m a t t e r
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Art. 1, § 5 APPENDIX 1 Section 6.
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Art. 2, § 3 APPENDIX 1 them, with
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Amdt. XII APPENDIX 1 number of Elec
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Amdt. XXV, § 1 APPENDIX 1 shall ta
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§ 802. Art. 2.(a)(4) APPENDIX 2 (4
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§ 809. Art. 9.(b) APPENDIX 2 o f h
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SUBCHAPTER IV. APPENDIX 2 Sec. Art.
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§ 825. Art. 25.(b)(2) APPENDIX 2 (
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§ 832. Art. 32.(b) APPENDIX 2 prov
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§ 839. Art. 39.(a) APPENDIX 2 this
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§ 847. Art. 47. APPENDIX 2 § 847.
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§ 854. Art. 54.(a) APPENDIX 2 the
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SUBCHAPTER IX. APPENDIX 2 Sec. Art.
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§ 864. Art. 64.(b)(2) APPENDIX 2 (
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§ 869. Art. 69.(e) APPENDIX 2 (e)
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§ 876b. Art. 76b.(a)(4)(C) APPENDI
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§ 886. Art. 86.(1) APPENDIX 2 ( 1
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§ 906a. Art. 106a.(a)(1) APPENDIX
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§ 919a. Art. 119a. APPENDIX 2 § 9
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§ 920. Art. 120.(t)(4)(C) APPENDIX
Page 480 and 481: § 924. Art. 124.(2) APPENDIX 2 (2)
Page 482 and 483: § 938. Art. 138. APPENDIX 2 court-
Page 484 and 485: § 943. Art. 143.(b) APPENDIX 2 (b)
Page 487 and 488: Department of Defense DIRECTIVE APP
Page 489 and 490: MEMORANDUM OF UNDERSTANDING BETWEEN
Page 491 and 492: MEMORANDUM OF UNDERSTANDING BETWEEN
Page 493: MEMORANDUM OF UNDERSTANDING BETWEEN
Page 496 and 497: Department of Justice determines th
Page 498 and 499: A4-2 APPENDIX 4
Page 502 and 503: [ N o t e 8 . M e m b e r s m a y b
Page 506 and 507: App. 8 APPENDIX 8 [Note 10. See R.C
Page 508 and 509: App. 8 APPENDIX 8 Election to be tr
Page 510 and 511: App. 8 APPENDIX 8 ACC: . Maximum pe
Page 512 and 513: App. 8 APPENDIX 8 A8-8 [Note 33. If
Page 514 and 515: App. 8 APPENDIX 8 AC: . MJ: Has any
Page 516 and 517: App. 8 APPENDIX 8 Assembly/prelimin
Page 518 and 519: App. 8 APPENDIX 8 Oath of witness [
Page 520 and 521: App. 8 APPENDIX 8 Out of court hear
Page 522 and 523: App. 8 APPENDIX 8 MJ: Which of thes
Page 524 and 525: App. 8 APPENDIX 8 GCM subject to re
Page 526 and 527: App. 8 APPENDIX 8 A8-22 MJ: The cou
Page 528 and 529: App. 9 APPENDIX 9 ACC: . Right to o
Page 532 and 533: App. 9 APPENDIX 9 SCM: By your plea
Page 534 and 535: App. 9 APPENDIX 9 Acceptance of gui
Page 536 and 537: App. 9 APPENDIX 9 Procedure if tota
Page 538 and 539: App. 9 APPENDIX 9 Entry on charge s
Page 541 and 542: a. Announcement of sentence APPENDI
Page 543 and 544: APPENDIX 12 MAXIMUM PUNISHMENT CHAR
Page 545 and 546: App. 12, Art. 120 This chart was co
Page 547 and 548: App. 12, Art. 134 This chart was co
Page 549: App. 12, Art. 134 This chart was co
Page 552 and 553: App. 13 APPENDIX 13 Receipt for rec
Page 554 and 555: App. 13 APPENDIX 13 Prior participa
Page 556 and 557: App. 13 APPENDIX 13 Note. If there
Page 558 and 559: App. 13 APPENDIX 13 I don’t know
Page 560 and 561: App. 13 APPENDIX 13 Instructions Th
Page 563 and 564: APPENDIX 14 GUIDE FOR PREPARATION O
Page 565 and 566: of the exhibit, as appropriate, as
Page 567 and 568: SSEs, Reporter’s Notes and Gestur
Page 569 and 570: Bench conferences and Article 39(a)
Page 571: GUIDE FOR PREPARATION OF RECORD OF
Page 576 and 577: App. 16 APPENDIX 16 Deferment of co
Page 578 and 579: App. 16 APPENDIX 16 certain rights,
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App. 16 APPENDIX 16 thority who may
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App. 17 APPENDIX 17 Specification:
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App. 17 APPENDIX 17 Remissions; sus
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APPENDIX 18 Report of Proceedings t
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APPENDIX 18 A18-3
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APPENDIX 19 Waiver/Withdrawal of Ap
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APPENDIX 20 Waiver/Withdrawal of Ap
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APPENDIX 21 ANALYSIS OF RULES FOR C
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this analysis was drafted, the spec
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previous Manuals. It is defined to
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straint may be necessary to ensure
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The Schooner Exchange v. McFaddon a
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220 (C.M.A. 1979); United States v.
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4 1 C . M . R . 2 9 ( 1 9 6 9 ) . S
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inconsistent with Fed.R. Crim. P. 4
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and to act. See Article 9(e). See a
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e m a i n i n g p r e t r i a l c o
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after trial. It is the responsibili
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( i ) P r i n c i p a l s — p a r
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third paragraph of paragraph 34 d o
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Rule 406 Pretrial advice ( a ) I n
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convening authority to avoid appoin
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Function section 3-3.9(a) (1979). C
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Providing broad discovery at an ear
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(f); paragraph 117 b(11) of MCM, 19
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u n d e r c o n t r a c t t o t h e
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(1964). See also United States v. S
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M.J. 354 (C.M.A. 1983), the Court s
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lish the outlines of their responsi
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make rulings at a 43(c)(2) conferen
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emains. Trial may not proceed with
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language of Article 48 applies only
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document is true. In this sense, a
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and 25, and United States v. Jeanba
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estrict the power of the convening
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to a court-martial. Cf. Lee v. Unit
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(a) In general. Subsection (1) is b
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v. Greene, 20 U.S.C.M.A. 232, 43 C.
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stituted for “in their possession
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least 16 years of age. The changes
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Cotten, 10 M.J. 260 (C.M.A. 1981);
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for in R.C.M. 918(a). But see Carro
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much information as the military ju
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e s t r i c t i o n , h a r d l a b
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the first of two “thresholds” b
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accused intended to affect national
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erence to the percentage of agreeme
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subsection implements Article 58b,
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the record. In subsection (A), the
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the defense may submit matters in i
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of showing lack of mental capacity
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President, remission or suspension
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the first paragraph of paragraph 98
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Rule 1202 Appellate counsel (a) In
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guilty, see Article 44; R.C.M. 905(
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(b) Contents. This subsection is ba
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App. 22, M.R.E. 101(a) APPENDIX 22
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App. 22, M.R.E. 105 APPENDIX 22 sta
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App. 22, M.R.E. 301(b)(1) APPENDIX
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App. 22, M.R.E. 302 APPENDIX 22 the
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Page 704 and 705:
App. 22, M.R.E. 304(d)(3) APPENDIX
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App. 22, M.R.E. 304(h)(3) APPENDIX
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App. 22, M.R.E. 305(e) APPENDIX 22
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App. 22, M.R.E. 311(b) APPENDIX 22
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App. 22, M.R.E. 312(c) APPENDIX 22
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App. 22, M.R.E. 314(c) APPENDIX 22
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App. 22, M.R.E. 315(h) APPENDIX 22
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App. 22, M.R.E. 412 APPENDIX 22 whi
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App. 22, M.R.E. 501 APPENDIX 22 app
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App. 22, M.R.E. 506 APPENDIX 22 Rul
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App. 22, M.R.E. 509 APPENDIX 22 Rul
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App. 22, M.R.E. 610 APPENDIX 22 ble
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App. 22, M.R.E. 701 APPENDIX 22 chi
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App. 22, M.R.E. 801(d)(1) APPENDIX
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App. 22, M.R.E. 803(4) APPENDIX 22
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App. 22, M.R.E. 803(19-20) APPENDIX
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App. 22, M.R.E. 1001(4) APPENDIX 22
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App. 22, M.R.E. 1102 APPENDIX 22 ne
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Pun. Art. 78 APPENDIX 23 on Article
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Pun. Art. 86 APPENDIX 23 (6) Inabil
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Pun. Art. 92 APPENDIX 23 e. Maximum
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Pun. Art. 95 APPENDIX 23 forces may
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Pun. Art. 108 APPENDIX 23 mum punis
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Pun. Art. 112 APPENDIX 23 wide Surv
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Pun. Art. 119 APPENDIX 23 slaughter
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Pun. Art. 122 APPENDIX 23 d. Lesser
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Pun. Art. 131 APPENDIX 23 1746 of t
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Pun. Art. 134 APPENDIX 23 United St
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Pun. Art. 134 APPENDIX 23 88. Artic
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Pun. Art. 134 APPENDIX 23 6c, no. 1
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APPENDIX 24 ANALYSIS OF NONJUDICIAL
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EXECUTIVE ORDER 12473 AS AMENDED BY
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THE WHITE HOUSE February 19, 1986 H
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investigation, referral of charges,
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EXECUTIVE ORDER NO. 12767 AMENDMENT
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EXECUTIVE ORDER 12888 AMENDMENTS TO
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this rule to have military counsel
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c r i m e t r i e d b y c o u r t -
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THE WHITE HOUSE December 23, 1993.
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fenses may not serve as the princip
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cials have a reasonable suspicion b
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EXECUTIVE ORDER 12960 AMENDMENTS TO
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postpone service of a sentence to c
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subsection (i)(3) reasonably could
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speed or erratic operation, but all
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which may properly or normally be e
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such as witness statements, investi
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However, the United States may not
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immediate need for the accused; the
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u. R.C.M. 1107(d)(3)(A) is amended
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have the authority to vacate any pu
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considered for its bearing on any m
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self from custody before being rele
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ta), having been placed in (post-tr
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EXECUTIVE ORDER 13140 1999 AMENDMEN
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(4) when a psychotherapist or assis
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Martial 502, 804, and 914A shall on
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HISTORICAL EXECUTIVE ORDERS A25-53
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Executive Order 13365 of December 3
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trait of character offered by an ac
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the effective date of this order th
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e conducted unless at least three m
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“In that (personal jurisdiction d
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lowing after the second sentence:
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emote means. At a minimum, all part
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property (known to be occupied by)
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d i c t i o n d a t a , i f r e q u
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ANNEX Section 1. Part II of the Man
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a person other than the accused was
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person subject to this chapter who
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(ii) a threat — (I) to accuse any
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(i) That the accused engaged in a s
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with or by a child or by another pe
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(8) Abusive sexual contact. (a) Art
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d r u g , i n t o x i c a n t , o r
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( b ) A g g r a v a t e d s e x u a
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(his)(her)( ) knowledge or permissi
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( n ) P a r a g r a p h 5 4 , A r t
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In that (personal jurisdiction data
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APPENDIX 26 THE JOINT SERVICE COMMI
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THE JOINT SERVICE COMMITTEE ON MILI
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ceased to resist only because of a
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wrongfully expose in an indecent ma
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MCM, 2008 INDEX Subject Ref. Page A
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MCM, 2008 INDEX Subject Ref. Page S
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MCM, 2008 INDEX Subject Ref. Page T
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MCM, 2008 INDEX Subject Ref. Page C
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MCM, 2008 INDEX Subject Ref. Page R
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MCM, 2008 INDEX Subject Court-marti
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MCM, 2008 INDEX Subject Ref. Page D
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MCM, 2008 INDEX Subject Ref. Page O
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MCM, 2008 INDEX Subject Ref. Page W
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MCM, 2008 INDEX Subject Ref. Page P
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MCM, 2008 INDEX Subject Ref. Page H
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MCM, 2008 INDEX Subject Ref. Page j
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MCM, 2008 INDEX Subject Ref. Page M
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MCM, 2008 INDEX Subject Ref. Page M
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MCM, 2008 INDEX Subject Jurisdictio
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MCM, 2008 INDEX Subject Ref. Page G
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MCM, 2008 INDEX Subject Ref. Page I
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MCM, 2008 INDEX Subject Ref. Page U
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MCM, 2008 INDEX Subject Ref. Page W
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MCM, 2008 INDEX Subject Ref. Page O
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Part I Preamble Part II Rules for C
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