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

lish the outlines of their responsibilities. Much of the discussion
is also derived from paragraphs 39 b, 40 b(2), and 53 g of MCM,
1969 (Rev.). A few minor changes have been made. For instance,
the military judge, not the president, determines the uniform to be
worn, and the military judge is not required to consult with the
president, nor is the president of a special court-martial without a
military judge required to consult with trial counsel, concerning
scheduling. As a practical matter, consultation or coordination
among the participants concerning scheduling or uniform may be
appropriate, but the authority for these decisions should rest with
the presiding officer of the court, either military judge or president
of a special court-martial without a military judge, without
being required to consult with others.
(b) Obtaining evidence. This subsection is taken from paragraph
54 b of the MCM, 1969 (Rev.). Some of the language in paragraph
54 b has been placed in the discussion.
(c) Uncharged offenses. This subsection is taken from paragraph
55 a of MCM, 1969 (Rev.). The discussion is designed to accomplish
the same purpose as paragraph 55 b of MCM, 1969 (Rev.),
although the language is no longer in terms which could be
construed as jurisdictional.
(d) Interlocutory questions and questions of law. This subsection
is similar in substance to paragraph 57 of MCM, 1969 (Rev.) and
is based on Articles 51(b) and 52(c).
Subsections (1) and (2) are based on Articles 51(b) and 52(c).
The provisions (R.C.M. 801(e)(1)(C); 801(e)(2)(C)) permitting a
military judge or president of a special court-martial without a
military judge to change a ruling previously made (Article 51(b))
have been modified to preclude changing a previously granted
motion for finding of not guilty. United States v. Hitchcock, 6
M.J. 188 (C.M.A. 1979). Under R.C.M. 916(k) the military judge
does not rule on the question of mental responsibility as an
interlocutory matter. See Analysis, R.C.M. 916(k). Thus there are
no rulings by the military judge which are subject to objection by
a member.
Subsection (2)(D) makes clear that all members must be present
at all times during special courts-martial without a military
judge. The president of a special court-martial lacks authority to
conduct the equivalent of an Article 39(a) session. Cf. United
States v. Muns, 26 C.M.R. 835 (C.G.B.R. 1958).
Subsection (3) is based on Articles 51(b) and 52(c) and is
derived from paragraph 57 c, d, f, and g of MCM, 1969 (Rev.).
Some language from paragraph 57 g has been placed in the
discussion.
Subsection (4) is taken from paragraph 57 g(1) of MCM, 1969
(Rev.). The rule recognizes, however, that a different standard of
proof may apply to some interlocutory questions. See, e.g., Mil.
R. Evid. 314(e)(5). The assignments of the burden of persuasion
are determined by specific rules or, in the absence of a rule, by
the source of the motion. This represents a minor change from the
language in paragraph 67 e of MCM, 1969 (Rev.), which placed
the burden on the accused for most questions. This assignment
was rejected by the Court of Military Appeals in several cases,
see, e.g., United States v. Graham, 22 U.S.C.M.A. 75, 46 C.M.R.
75 (1972). Assignments of burdens of persuasion and, where
appropriate, going forward are made in specific rules. “Burden of
persuasion” is used instead of the more general “burden of proof”
to distinguish the risk of non persuasion once an issue is raised
from the burden of production necessary to raise it. See McCor-
ANALYSIS
App. 21, R.C.M. 801(f)
mick’s Handbook of the Law of Evidence § 336 (E. Cleary ed.
1972). For example, although the defense may have the burden of
raising an issue (e.g., statute of limitations), once it has done so
the prosecution may bear the burden of persuasion.
The discussion under subsection (5) describes the differences
between interlocutory questions and ultimate questions, and between
questions of fact and questions of law. It is taken, substantially,
from paragraph 57 b of MCM, 1969 (Rev.). As to the
distinction between questions of fact and questions of law, see
United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R. 379
(1965). The discussion of issues which involve both interlocutory
questions and questions determinative of guilt is based on United
States v. Bailey, 6 M.J. 965 (N.C.M.R. 1979); United States v.
Jessie, 5 M.J. 573 (A.C.M.R.), pet, denied, 5 M.J. 300 (1978). It
is similar to language in the third paragraph of paragraph 57 b of
MCM, 1969 (Rev.), which was based on United States v. Ornelas,
2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952). See Analysis of
Contents, Manual for Courts-Martial, United States, 1969, Revised
Edition, DA PAM 27–2, 10–5 (July 1970). That example,
and the decision in United States v. Ornelas, supra were questioned
in United States v. Laws, 11 M.J. 475 (C.M.A. 1981). The
discussion clarifies that when a military offense (i.e., one which
requires that the accused be a “member of the armed forces,” see
Articles 85, 86, 99; see also Articles 88–91, 133) is charged and
the defense contends that the accused is not a member of the
armed forces, two separate questions are raised by that contention:
first, whether the accused is subject to court-martial jurisdiction
( see R.C.M. 202); and, second, whether, as an element of
the offense, the accused had a military duty which the accused
violated (e.g., was absent from the armed forces or a unit thereof
without authority). The first question is decided by the military
judge by a preponderance of the evidence. The second question,
to the extent it involves a question of fact, must be decided by the
factfinder applying a reasonable doubt standard. United States v.
Bailey, supra. See also United States v. McGinnis, 15 M.J. 345
(C.M.A. 1983); United States v. Marsh, 15 M.J. 252 (C.M.A.
1983); United States v. McDonagh, 14 M.J. 415 (C.M.A. 1983).
Thus it would be possible, in a case where larceny and desertion
are charged, for the military judge to find by a preponderance of
the evidence that the accused is subject to military jurisdiction
and for the members to convict of larceny but acquit of desertion
because they were not satisfied beyond reasonable doubt that the
accused was a member of the armed forces.
Ornelas does not require a different result. The holding in
Ornelas was that the law officer (military judge) erred in failing
to permit the members to resolve a contested issue of the accused’s
status as a servicemember on a desertion charge. Language
in the opinion to the effect that the “jurisdictional” issue
should have been submitted to the members is attributable to
language in paragraph 67 e of MCM, 1951, which suggested that
“defenses,” including “jurisdiction,” were to be resolved by the
members. Such a procedure for resolving motions to dismiss has
been abolished. See R.C.M. 905; 907; and 916. Thus the procedure
implied by a broad reading of Ornelas for resolving jurisdiction
is not required by the Manual. See generally United States v.
Laws, supra. Cf. United States v. McDonagh, supra. On the other
hand, when military status is an element of the offense, the fact of
such military status must be resolved by the factfinder. Cf. United
States v. McGinnis and United States v. Marsh, both supra.
(f) Rulings on record. This subsection is based on paragraph 39 c
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