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

App. 21, R.C.M. 801(f) APPENDIX 21
of MCM, 1969 (Rev.). Paragraph 39 c did not include a reference
to rulings and instructions by the president of a special courtmartial
without a military judge, nor was specific reference to
them made elsewhere in the Manual. Since such rulings and
instructions are subject to the same review as those of a military
judge, the same standard should apply to both at this stage. The
rule is based on Article 54. The discussion refers to R.C.M. 808
and 1103 to indicate what must be recorded at trial. Concerning
requirements for verbatim records, see United States v. Douglas,
1 M . J . 3 5 4 ( C . M . A . 1 9 7 6 ) ; U n i t e d S t a t e s v . B o x d a l e , 2 2
U.S.C.M.A. 414, 47 C.M.R. 351 (1973); United States v. Weber,
20 U.S.C.M.A. 82, 42 C.M.R. 274 (1970).
(g) Effect of failure to raise defenses or objections. This subsection
is based on Fed. R. Crim. P. 12(f), except for the addition of
the term “motions” to make clear that motions may be covered by
the rule and changes to conform to military terminology and
procedure. Such waiver provisions are more specifically implemented
as to many matters throughout the Rules. Several examples
are listed in the discussion.
Rule 802 Conferences
Introduction. This rule is new. It is based on Fed. R. Crim. P.
17.1, but is somewhat broader and more detailed. Fed. R. Crim.
P. 17.1 apparently authorizes, by its title, only pretrial conferences.
Conferences other than pretrial conferences are also authorized
in federal practice. See Fed. R. Crim. P. 43(c)(3); Cox v.
United States, 309 F.2d 614 (8th Cir. 1962). R.C.M. 802 applies
to all conferences. Nothing in this rule is intended to prohibit the
military judge from communicating, even ex parte, with counsel
concerning routine and undisputed administrative matters such as
scheduling, uniform, and travel arrangements. Such authority was
recognized in the fourth sentence of paragraph 39 c of MCM,
1969 (Rev.).
Like Fed. R. Crim. P. 17.1, this rule provides express authority
for what is already common practice in many courts-martial, and
regularizes the procedure for them. Fed. R. Crim. P. 17.1 is
designed to be used in unusual cases, such as complicated trials.
Conferences are needed more frequently in courts-martial because
in many instances the situs of the trial and the home bases of the
military judge, counsel, and the accused may be different. Even
when all the participants are located at the same base, conferences
may be necessary. See ABA Standards, Discovery and Procedural
Before Trial § 11–5.4 (1978). After the trial has begun, there is
often a need to discuss matters in chambers. Cf. Fed. R. Crim. P.
43(c); United States v. Gregorio, 497 F.2d 1253 (4th Cir.), cert.
denied, 419 U.S. 1024 (1974).
(a) In general. This subsection is taken directly from the first
sentence of Fed. R. Crim. P. 17.1, with modifications to accommodate
military terminology. Subsection (c) provides that a conference
may not proceed over the objection of a party and that, in
effect, matters may be resolved at a conference only by agreement
of the parties. Thus, the military judge can bring the parties
together under subsection (a), but a conference could not proceed
further without the voluntary participation of the parties. Nothing
in this rule is intended to prohibit the military judge from communicating
to counsel, orally or in writing, matters which may
properly be the subject of rules of court. See R.C.M. 108; 801.
This is also true under the federal rule. See Committee on Pretrial
Procedure of the Judicial Conference of the United States, Rec-
A21-44
o m m e n d e d P r o c e d u r e s i n C r i m i n a l T r i a l s , 3 7 F . R . D . 9 5 , 9 8
( 1 9 6 5 ) ; C . W r i g h t , W r i g h t ’ s F e d e r a l P r a c t i c e a n d P r o c e d u r e
Para. 292 (1969). Cf. United States v. Westmoreland, 41 F.R.D.
419 (S.D. Ind. 1967).
The discussion provides some examples of the potential uses of
conferences. As noted, issues may be resolved only by agreement
of the parties; they may not be litigated or decided at a conference.
To do so would exceed, and hence be contrary to, the
authority established under Article 39(a). The prohibition against
judicial participation in plea bargaining is based on United States
v. Caruth, 6 M.J. 184, 186 (C.M.A. 1979). Cf. United States v.
Allen, 8 U.S.C.M.A. 504, 25 C.M.R. 8 (1957). But, cf. ABA
Standards, Pleas of Guilty § 14–3.3(c) (1979).
(b) Matters on record. This subsection is based on the second
sentence in Fed. R. Crim. P. 17.1. The federal rule requirement
for a written memorandum was rejected as too inflexible and
unwieldy for military practice. The interests of the parties can be
adequately protected by placing matters on the record orally. If
any party fears that such an oral statement will be inadequate, that
party may insist on reducing agreed-upon matters to writing as a
condition of consent. In any event, a party is not prohibited from
raising the matters again at trial. See subsection (c) below.
The waiver provision has been added because the conference is
not part of the record of trial under Article 54. The purpose of the
requirement for inclusion in the record is to protect the parties,
and therefore it may be waived. United States v. Stapleton, 600
F.2d 780 (9th Cir. 1979).
(c) Rights of parties. This subsection does not appear in the
federal rule. It is intended to ensure that conferences do not
become a substitute for Article 39(a) sessions. In this respect Fed.
R. Crim. P. 17.1 is broader than R.C.M. 802, since the federal
rule apparently includes “conferences” held on the record and
permits the parties to be bound by matters resolved at the conference.
See C. Wright, supra at Para. 292.
1991 Amendment: The prohibition against conferences proceeding
over the objection of any party was eliminated as it conflicted
with the military judge’s specific authority to order conferences
under section (a) of this rule and general authority to control the
conduct of court-martial proceedings. While the military judge
may compel the attendance of the parties, neither party may be
compelled to resolve any issue or be pressured to make any
concessions.
(d) Accused’s presence. This subsection does not appear in Fed.
R. Crim. P. 17.1. The silence of the federal rule on this matter has
been controversial. See Douglas, J., dissenting from approval of
Fed. R. Crim. P. 17.1 at 39 F.R.D. 276, 278 (1966). See also 8 J.
Moore, Moore’s Federal Practice Para. 17.1.02 [1]; 17.1.03 [3]
(1982 rev. ed.); Rezneck, The New Federal Rules of Criminal
Procedure, 54 Geo. L. J. 1276, 1294–99 (1966); ABA Standards,
Discovery and Procedure Before Trial § 11–5.4(a) (1978). The
presence of the accused is not necessary in most cases since most
matters dealt with at conferences will not be substantive. The
participation of the defense in conferences and whether the accused
should attend are matters to be resolved between defense
counsel and the accused.
Fed. R. Crim. P. 43(c)(2) authorizes conferences concerning
questions of law to be held without the presence of the accused.
The proceedings described in Fed. R. Crim. P. 43(c)(2) are analogous
to those described in Article 39(a)(2), since the judge may