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

M.J. 354 (C.M.A. 1983), the Court stated that the convening
authority may be bound by a pretrial agreement before entry of a
plea of guilty if the accused has detrimentally relied on the agreement.
The Court indicated, however, that not all forms of reliance
by the accused rise to the level of detrimental reliance as it used
that term. Thus the Court held in Shepardson that exclusion of
statements allegedly made by the accused as a result of the agreement
(but not necessarily pursuant to it) was an adequate remedy,
and enforcement of the agreement was not required when the
convening authority withdrew from it before trial. Similarly, the
Court opined that the fact that an accused made arrangements to
secure employment or took similar actions in reliance on an
agreement would not require enforcement of a pretrial agreement.
Subsection (5) is consistent with this approach, but uses beginning
of performance by the accused to provide a clearer point at
which the right of the convening authority to withdraw terminates.
Note that the beginning of performance is not limited to
entry of a plea. It would also include testifying in a companion
case, providing information to Government agents, or other actions
pursuant to the terms of an agreement.
Note that the accused may withdraw from a pretrial agreement
even after entering a guilty plea or a confessional stipulation, but,
once the plea is accepted or the stipulation admitted, could not
withdraw the plea or the stipulation except as provided under
R.C.M. 910(h) or 811(d). The fact that the accused may withdraw
at any time affords the accused an additional measure of protection
against prosecutorial abuse. It also reflects the fact that the
convening authority can retrieve any relief granted the accused.
See Article 63; United States v. Cook, supra.
1991 Amendment: R.C.M. 705(d) was amended to authorize
either party to initiate pretrial agreement negotiations and propose
terms and conditions. The amendment does not change the general
rule that all terms and conditions of a pretrial agreement
proposed pursuant to this rule must not violate law, public policy,
or regulation. Subparagraph (1) was eliminated and subparagraphs
(2)–(5), as amended, were renumbered (1)–(4), respectively. This
amendment is patterned after federal civilian practice [ see Fed.
R. Crim. P. 11(e)] where there is no requirement that negotiations
for plea agreements originate with the defense. In courts-martial
the military judge is required to conduct an exhaustive inquiry
into the providence of an accused’s guilty plea and the voluntariness
of the pretrial agreement. R.C.M. 705(c) ensures that certain
fundamental rights of the accused cannot be bargained away.
Furthermore it can be difficult to determine which side originated
negotiations or proposed a particular clause. Cf. United States v.
J o n e s , 2 3 M . J . 3 0 5 , 3 0 8 – 3 0 9 ( C . M . A . 1 9 8 7 ) ( C o x , J . ,
concurring).
(e) Nondisclosure of existence of agreement. This subsection is
based on United States v. Green, supra; United States v. Wood,
2 3 U . S . C . M . A . 5 7 , 4 8 C . M . R . 5 2 8 ( 1 9 7 4 ) . S e e a l s o R . C . M .
910(f); Mil. R. Evid. 410.
Rule 706 Inquiry into the mental capacity or
mental responsibility of the accused
This rule is taken from paragraph 121 of MCM, 1969 (Rev.).
Minor changes were made in order to conform with the format
and style of the Rules for Courts-Martial. See also United States
v. Cortes-Crespo, 13 M.J. 420 (1982); United States v. Frederick,
3 M.J. 230 (C.M.A. 1977); Mil. R. Evid. 302 and Analysis. The
ANALYSIS
App. 21, R.C.M. 707(a)
rule is generally consistent with 18 U.S.C. § 4244. The penultimate
paragraph in paragraph 121 is deleted as an unnecessary
statement.
1987 Amendment: Subsection (c)(1) was modified, in light of
changes to federal law, to allow the use of available clinical
psychologists. See 18 U.S.C. §§ 4241, 4242, and 4247. Subsection
(c)(2) was revised to implement Article 50a, which was
added to the UCMJ in the [nb, N] “Military Justice Amendments
of 1986,” tit. [nb, A] VIII, § 802, National Defense Authorization
Act for fiscal year 1987, Pub. L. No. 99–661, 100 Stat. 3905
(1986). Article 50a adopted some provisions of the Insanity Defense
Reform Act, ch. IV, Pub. L. No. 98–473, 98 Stat. 2057
(1984). See also Analysis of R.C.M. 916(k). The subsection dealing
with the volitional prong of the American Law Institute’s
Model Penal Code test was deleted. Subsection (A) was amended
by adding and defining the word “severe.” See R.C.M. 916(k)(1);
S. Rep. No. 225, 98th Cong., 1st Sess. 229 (1983), reprinted in
1984 U.S. Code Cong. & Ad. News 1, 231. Subsection (C) was
amended to state the cognitive test as now set out in R.C.M.
916(k)(1).
1998 Amendment. Subsection (c)(2)(D) was amended to reflect
the standard for incompetence set forth in Article 76b, UCMJ.
Rule 707 Speedy trial
Introduction. This rule applies the accused’s speedy trial
rights under the 6th Amendment and Article 10, UCMJ, and
protects the command and societal interest in the prompt administration
of justice. See generally Barker v. Wingo, 407 U.S. 514
(1972); United States v. Walls, 9 M.J. 88 (C.M.A. 1980). The
purpose of this rule is to provide guidance for granting pretrial
delays and to eliminate after-the-fact determinations as to whether
certain periods of delay are excludable. This rule amends the
former rule, which excluded from accountable time periods covered
by certain exceptions.
(a) In general. This subsection is based on ABA Standards for
Criminal Justice, Speedy Trial, 12–2.1, 12–2.2 (1986). The ABA
Standards set no time limit but leave the matter open depending
on local conditions. The basic period from arrest or summons to
trial under The Federal Speedy Trial Act, 18 U.S.C. § 3161, is
100 days. The period of 120 days was selected for courts-martial
as a reasonable outside limit given the wide variety of locations
and conditions in which courts-martial occur. The dates of the
events which begin government accountability are easily ascertainable
and will avoid the uncertainty involved in Thomas v.
Edington, 26 M.J. 95 (C.M.A. 1988).
The 90-day rule previously established in R.C.M. 707(d) has
been eliminated. As such, the 120-day rule established in subsection
(a) of this rule applies to all cases, not just cases where the
accused is in pretrial confinement. Judicial decisions have held,
however, that when an accused has been held in pretrial confinement
for more than 90 days, a presumption arises that the accused’s
right to a speedy trial under Article 10, UCMJ has been
violated. In such cases, the government must demonstrate due
diligence in bringing the case to trial. United States v. Burton, 44
C.M.R. 166 (C.M.A. 1971). Unless Burton and its progeny are
reexamined, it would be possible to have a Burton violation
despite compliance with this rule.
2002 Amendment: Burton and its progeny were re-examined in
United States v. Kossman, 38 M.J. 258 (C.M.A. 1993), where the
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