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

App. 21, R.C.M. 804(b) APPENDIX 21
duty on the part of a defendant in a felony trial to be present. 597
F.2d at 28.
Military cases also recognize that an accused may expressly
waive the right to be present, United States v. Blair, 36 C.M.R.
750 (N.B.R. 1965), rev’d on other grounds, 16 U.S.C.M.A. 257,
3 6 C . M . R . 4 1 3 ( 1 9 6 6 ) . S e e e . g . , U n i t e d S t a t e s v . H o l l y , 4 8
C.M.R. 990 (A.F.C.M.R. 1974). Cf. United States v. Cook, 20
U.S.C.M.A. 504, 43 C.M.R. 344 (1971). Some earlier military
cases indicated that accused’s counsel could waive the accused’s
right to be present. This is contrary to present authority. See
United States v. Holly, supra.
Subsection (1) is similar to paragraph 11 c of MCM, 1969
(Rev.). The language in MCM, 1969 (Rev.), which indicated that
an absence had to be unauthorized, has been omitted. The language
now conforms to the federal rule in this respect. The term
“unauthorized” has never been treated as significant. See United
States v. Peebles, 3 M.J. 177 (C.M.A. 1977). As the discussion
notes in the fourth paragraph, a person who is in custody or
otherwise subject to military control cannot, while in such a
status, voluntarily be absent from trial without expressly waiving
the right on the record and receiving the permission of the military
judge to be absent. Cf. United States v. Crutcher, supra. This
appears to be the treatment that the term “unauthorized” was
designed to effect. See United States v. Peebles, supra at 179
(Cook, J.).
Trial in absentia, when an accused voluntarily fails to appear at
trial following arraignment, has long been permitted in the military.
United States v. Houghtaling, supra. Authority for the third
and fourth paragraphs of the discussion under Voluntary absence
is found in United States v. Peebles, supra. United States v. Cook,
supra requires that the voluntariness of an absence be established
on the record before trial in absentia may proceed. Because the
prosecution will be the party moving for trial in absentia, the
discussion notes that the prosecution has the burden to prove
voluntariness as well as absence. The example of an inference is
taken from Judge Perry’s separate opinion in United States v.
Peebles, supra. Compare United States v. Partlow, 428 F.2d 814
(2d. Cir. 1970) with Phillips v. United States, 334 F.2d 589 (9th
Cir. 1964), cert, denied, 379 U.S. 1002 (1965).
Subsection (2) is the same as Fed. R. Crim. P. 43(b)(2) except
for changes in terminology. The rule and much of the discussion
are based on Illinois v. Allen, 397 U.S. 337 (1970). The discussion
also draws heavily on ABA Standards, Special Functions of
the Trial Judge § 6–3.8 and Commentary (1978). With respect to
binding an accused, see United States v. Gentile, 1 M.J. 69
( C . M . A . 1 9 7 5 ) . S e e a l s o U n i t e d S t a t e s v . H e n d e r s o n , 1 1
U.S.C.M.A. 556, 29 C.M.R. 372 (1960).
(c) Voluntary absence for limited purpose of child testimony.
1999 Amendment: The amendment provides for two-way closed
circuit television to transmit a child’s testimony from the courtroom
to the accused’s location. The use of two-way closed circuit
television, to some degree, may defeat the purpose of these alternative
procedures, which is to avoid trauma to children. In such
cases, the judge has discretion to direct one-way television communication.
The use of one-way closed circuit television was
approved by the Supreme Court in Maryland v. Craig, 497 U.S.
836 (1990). This amendment also gives the accused the election
to absent himself from the courtroom to prevent remote testimo-
A21-46
ny. Such a provision gives the accused a greater role in determining
how this issue will be resolved.
(d) Appearance and security of accused. This subsection is similar
to paragraph 60 of MCM, 1969 (Rev.).
In subsection (1), the last sentence represents a modification of
previous practice by making the accused and defense counsel
primarily responsible for the personal appearance of the accused.
Because of difficulties the defense may face in meeting these
responsibilities, the rule requires the commander to give reasonable
assistance to the defense when needed. The discussion emphasizes
the right (see United States v. West, 12 U.S.C.M.A. 670, 31
C.M.R. 256 (1962)) and the duty (see United States v. Gentile,
supra) of the accused to appear in proper military uniform.
Subsection (2) reflects the changes since 1969 in rules governing
pretrial restraint. These rules are now found in the sections
r e f e r r e d t o b y R . C . M . 8 0 4 ( c ) ( 2 ) . I n s o f a r a s p a r a g r a p h 6 0 o f
MCM, 1969 (Rev.) was a means of allocating responsibility for
maintaining (as opposed to authorizing) custody over an accused
until completion of trial, and insofar as this allocation is not
mandated by other rules in this Manual, the service secretaries are
authorized to prescribe rules to accomplish such allocation.
Subsection (3) is taken verbatim from paragraph 60 of MCM,
1969 (Rev.).
Rule 805 Presence of military judge, members,
and counsel
(a) Military judge. This subsection is based on paragraph 39 d of
MCM, 1969 (Rev.).
(b) Members. This subsection is based on paragraphs 41 c and 41
d(1) and (2) and the first sentence of the second paragraph 62 b
of MCM, 1969 (Rev.) and on Article 29(c). See also United
States v. Colon, 6 M.J. 73 (C.M.A. 1978).
1986 Amendment: References to R.C.M. “911” were changed
to R.C.M. “912” to correct an error in MCM, 1984.
(c) Counsel. This subsection modifies paragraphs 44 c and 46 c
which required the express permission of the convening authority
or the military judge for counsel to be absent. The rule now states
only the minimum requirement to proceed. The discussion noted
that proceedings ordinarily should not be conducted in the absence
of any defense or assistant defense counsel unless the
accused consents. The second sentence in the discussion is based
on Ungar v. Sarafite, 376 U.S. 575 (1964); United States v.
Morris, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975); United States
v. Kinard, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972); United
States v. Hampton, 50 C.M.R. 531 (N.C.M.R.), pet. denied, 23
U.S.C.M.A. 663 (1975); United States v. Griffiths, 18 C.M.R. 354
(A.B.R.), pet. denied, 6 U.S.C.M.A. 808, 19 C.M.R. 413 (1955).
See also Morris v. Slappy, 461 U.S. 1 (1983); Dennis v. United
States, 340 U.S. 887 (1950) (statement of Frankfurter, J.); United
States v. Batts, 3 M.J. 440 (C.M.A. 1977); 17 AM. Jur. 2d
§§ 34–37 (1964).
(d) Effect of replacement of member or military judge. This subsection
is based on Article 29(b), (c), and (d) and on paragraphs
39 e and 41 e and f of MCM, 1969 (Rev.). MCM, 1969 (Rev.)
also provided a similar procedure when a member of a courtmartial
was temporarily excused from the trial. This rule does not
authorize such a procedure. If a member must be temporarily
absent, a continuance should be granted or the member should be
permanently excused and the trial proceed as long as a quorum