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

and 25, and United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.
1 9 7 8 ) ; U n i t e d S t a t e s v . T h o r p e , 5 M . J . 1 8 6 ( C . M . A . 1 9 7 8 ) ;
United States v. Wright, 5 M.J. 106 (C.M.A. 1978); United States
v. Bryant, supra. See also United States v. Holmen, 586 F.2d 322
(4th Cir. 1978).
D e s p i t e d i c t a i n U n i t e d S t a t e s v . B r y a n t , s u p r a a t 3 2 8 , 4 9
C.M.R. at 662 n. 2, that withdrawal must be in writing, the rule
prescribes no format for withdrawal. Cf. Article 16(1)(B), as
amended, see Military Justice Act of 1983, Pub. L. No. 98–209,
§ 3(a), 97 Stat. 1393 (1983).
1987 Amendment: Subsections (b)(1), (c)(1) and (c)(3) were
amended to reflect an amendment to Article 25(c)(1) UCMJ, in
the “Military Justice Amendments of 1986,” tit. VIII, § 803, National
Defense Authorization Act for fiscal year 1987, Pub. L. No.
99–661, 100 Stat. 3905 (1986). See Analysis R.C.M. 503.
Rule 904 Arraignment
This rule is based on Fed. R. Crim. P. 10 and paragraph 65 a
of MCM, 1969 (Rev.). The second sentence of Fed. R. Crim. P.
10 has been deleted as unnecessary since in military practice the
accused will have been served with charges before arraignment.
Article 35; R.C.M. 602. the discussion is based on paragraph 65
of MCM, 1969 (Rev.).
Rule 905 Motions generally
Introduction. This rule is based generally on Fed. R. Crim.
P. 12 and 47 and paragraphs 66 and 67 of MCM, 1969 (Rev.).
Specific similarities and differences are discussed below.
(a) Definitions and form. The first sentence of this subsection is
taken from the first sentence of paragraph 66 b of MCM, 1969
(Rev.). It is consistent with the first sentence of Fed. R. Crim. P.
47 and the second sentence of Fed. R. Crim. P. 12(a). The second
sentence is based on the second sentence of paragraph 67 c of
MCM, 1969 (Rev.), although to be consistent with Federal practice
(see Fed. R. Crim. P. 12(b) (second sentence) and 47 (second
sentence)) express authority for the military judge to exercise
discretion over the form of motions has been added. The third
sentence is based on the third sentence of Fed. R. Crim. P. 47 and
is consistent with the first sentence of paragraph 67 c and the
fourth sentence of paragraph 69 a of MCM, 1969 (Rev.). The last
sentence in this subsection is based on the third sentence of
paragraph 67 c of MCM, 1969 (Rev.). Although no parallel provision
appears in the Federal Rules of Criminal Procedure, this
standard is similar to federal practice. See Marteney v. United
States , 216 F.2d 760 (10th Cir. 1954); United States v. Rosenson,
291 F. Supp. 867 (E.D. La. 1968), affd, 417 F.2d 629 (5th Cir.
1969); cert. denied, 397 U.S. 962 (1970). The last sentence in
Fed. R. Crim. P. 47, allowing a motion to be supported by
affidavit, is not included here. See subsection (h) of this rule and
Mil. R. Evid. 104(a). See generally Fed. R. Crim. P. 47 Notes Of
Advisory Committee on Rules n. 3.
(b) Pretrial motions. This subsection, except for subsection (6), is
based on Fed. R. Crim. P. 12(b). Subsections (1) and (2) have
been modified to conform to military practice and are consistent
with the first two sentences of paragraph 67 b of MCM, 1969
( R e v . ) . S u b s e c t i o n ( 3 ) i s c o n s i s t e n t w i t h M i l . R . E v i d .
304(d)(2)(A); 311(d)(2)(A); 321(c)(2)(A). The discussion is based
on paragraph 69A of MCM, 1969 (rev.). Subsection (4) is new.
ANALYSIS
App. 21, R.C.M. 905(e)
See R.C.M. 701; 703; 1001(e). Subsection (5) is also new. Subsection
(6) is based on paragraphs 46 d and 48 b(4) of MCM,
1969 (Rev.) andUnited States v. Redding, 11 M.J. 100 (C.M.A.
1981).
(c) Burden of proof. This subsection is based on paragraphs 57
g(1) and 67 e of MCM, 1969 (Rev.). The assignment of the
burden of persuasion to the moving party is a minor change from
the language in paragraph 67 e of MCM, 1969 (Rev.), which
placed the burden on the accused “generally.” The effect is basically
the same, however, since the former rule probably was
intended to apply to motions made by the accused. See also
U n i t e d S t a t e s v . G r a h a m , 2 2 U . S . C . M . A . 7 5 , 4 6 C . M . R . 7 5
(1972). The exceptions to this general rule in subsection (B) are
based on paragraphs 68 b (1), 68 c, and 215 e of MCM, 1969
(Rev.). See also United States v. McCarthy, 2 M.J. 26, 28 n. 1
(C.M.A. 1976); United States v. Graham, supra; United States v.
Garcia, 5 U.S.C.M.A. 88, 17 C.M.R. 88 (1954). The Federal
Rules of Criminal Procedure are silent on burdens of proof.
Fed. R. Crim. P. 12(c) is not adopted. This is because in
courts-martial, unlike civilian practice, arraignment does not necessarily,
or even ordinarily, occur early in the criminal process. In
c o u r t s - m a r t i a l , a r r a i g n m e n t u s u a l l y o c c u r s o n l y a s h o r t t i m e
before trial and in many cases it occurs the same day as trial.
Because of this, requiring a motions date after arraignment but
before trial is not appropriate, at least as a routine matter. Instead,
entry of pleas operates, in the absence of good cause, as the
deadline for certain motions. A military judge could, subject to
subsections (d) and (e), schedule an Article 39(a) session ( see
R.C.M. 803) for the period after pleas are entered but before trial
to hear motions.
(d) Ruling on motions. This subsection is based on Fed. R. Crim.
P. 12(e). It is consistent with the first sentence in paragraph 67 e
of MCM, 1969 (Rev.). The admonition in the second sentence of
that paragraph has been deleted as unnecessary. The discussion is
based on the third paragraph of paragraph 67 f of MCM, 1969
(Rev.).
1991 Amendment: The discussion was amended to reflect the
change to R.C.M. 908(b)(4).
(e) Effect of failure to raise defenses or objections. The first two
sentences in the subsection are taken from Fed. R. Crim. P. 12(f)
and are consistent with paragraph 67 b of MCM, 1969 (Rev.).
The third sentence is based on paragraph 67 a of MCM, 1969
(Rev.). The Federal Rules of Criminal Procedure do not expressly
provide for waiver of motions other than those listed in Fed. R.
Crim. P. 12(b). (But see 18 U.S.C. § 3162(a)(2) which provides
that failure by the accused to move for dismissal on grounds of
denial of speedy trial before trial or plea of guilty constitutes
waiver of the right to dismissal under that section.) Nevertheless,
it has been contended that because Fed. R. Crim. P. 12(b)(2)
provides that lack of jurisdiction or failure to allege an offense
“shall be noticed by the court at any time during the pendency of
the proceedings,” “it may, by negative implications be interpreted
as foreclosing the other defense if not raised during the trial
itself.” 8A J. Moore, Moore’s Federal Practice Para. 12.03[1]
(1982 rev. ed.). “Pendency of the proceedings” has been held to
include the appellate process. See United States v. Thomas, 444
F.2d 919 (D.C. Cir. 1971). Fed. R. Crim. P. 34 tends to support
this construction insofar as it permits a posttrial motion in arrest
of judgment only for lack of jurisdiction over the offense or
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