2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
App. 21, R.C.M. 920(d) APPENDIX 21 Cir. 1981); United States v. Calabrase, 645 F.2d 1379 (10th Cir.), cert. denied, 454 U.S. 831 (1981). (e) Required instructions. This subsection is based on Article 51(c) and on the first paragraph of paragraph 73 a of MCM, 1969 (Rev.). See also United States v. Steinruck, 11 M.J. 322 (C.M.A. 1981); United States v. Moore, supra; United States v. Clark, 1 U.S.C.M.A. 201, 2 C.M.R. 107 (1952). As to whether the defense may affirmatively waive certain instructions (e.g., lesser included offenses) which might otherwise be required, see United States v. Johnson, 1 M.J. 137 (C.M.A. 1975); United States v. Mundy, 2 U.S.C.M.A. 500, 9 C.M.R. 130 (1953). See generally Cooper, The Military Judge: More Than a Mere Reference, The Army Lawyer (Aug. 1976) 1; Hilliard, The Waiver Doctrine: Is It Still Viable?, 18 A.F.L. Rev. 45 (Spring 1976). 1986 Amendment: Subsection (2) was amended to require the accused to waive the bar of the statute of limitations if the accused desires instructions on any lesser included offense otherwise barred. Spaziano v. Florida, 468 U.S. 447 (1984). This o v e r t u r n s t h e h o l d i n g s i n U n i t e d S t a t e s v . W i e d e m a n n , 1 6 U.S.C.M.A. 356, 36 C.M.R. 521 (1966) and United States v. Cooper, 16 U.S.C.M.A. 390, 37 C.M.R. 10 (1966). The same rule applies in trials by military judge alone. Article 51(d). This is consistent with Article 79 because an offense raised by the evidence but barred by the statute of limitations is “necessarily included in the offense charged,” unless the accused waives the statute of limitations. The first paragraph in the discussion is based on United States v. Jackson, 12 M.J. 163 (C.M.A. 1981); United States v. Waldron, 1 1 M . J . 3 6 ( C . M . A . 1 9 8 1 0 ; U n i t e d S t a t e s v . E v a n s , 1 7 U.S.C.M.A. 238, 38 C.M.R. 36 (1967); United States v. Clark, supra. See United States v. Johnson, 637 F.2d 1224 (9th Cir. 1980); United States v. Burns, 624 F.2d 95 (10th Cir), cert. denied, 449 U.S. 954 (1980). The third paragraph in the discussion is based on paragraph 73 a of MCM, 1969 (Rev.) and on Military Judges Benchbook, DA Pam 27–9 Appendix A. (May 1982). See also United States v. Thomas, 11 M.J. 388 (C.M.A.1981); United States v. Fowler, 9 M.J. 149 (C.M.A. 1980); United States v. James, 5 M.J. 382 (C.M.A. 1978) (uncharged misconduct); United States v. Robinson, 11 M.J. 218 (C.M.A. 1981) (character evidence); United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975) (effect of guilty plea o n o t h e r c h a r g e s ) ; U n i t e d S t a t e s v . M i n t e r , 8 M . J . 8 6 7 (N.C.M.R.), aff’d, 9 M.J. 397 (C.M.A. 1980); United States v. Prowell, 1 M.J. 612 (A.C.M.R. 1975) (effect of accused’s absence from trial); United States v. Jackson, 6 M.J. 116 (C.M.A. 1 9 7 9 ) ; U n i t e d S t a t e s v . F a r r i n g t o n , 1 4 U . S . C . M . A . 6 1 4 , 3 4 C.M.R. 394 (1964) (accused’s failure to testify). The list is not exhaustive. The fourth paragraph in the discussion is based on paragraph 73 c of MCM, 1969 (Rev.). See also United States v. Grandy, 11 M.J. 270 (C.M.A. 1981). 1986 Amendment: Subsection (e)(5)(D) was amended to conform to amendments to R.C.M. 916(b). 1998 Amendment: This change to R.C.M. 920(e) implemented Congress’ creation of a mistake of fact defense for carnal knowle d g e . A r t i c l e 1 2 0 ( d ) , U C M J , p r o v i d e s t h a t t h e a c c u s e d m u s t prove by a preponderance of the evidence that the person with whom he or she had sexual intercourse was at least 12 years of A21-68 age, and that the accused reasonably believed that this person was at least 16 years of age. 2007 Amendment: Changes to this paragraph, deleting “carnal knowledge” and consistent language, are based on section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and replaces paragraph 45 with Rape, sexual assault and other sexual misconduct. (f) Waiver. This subsection is based on the last two sentences in Fed. R. Crim. P. 30. See also United States v. Grandy, supra; United States v. Salley, 9 M.J. 189 (C.M.A. 1980). Rule 921 Deliberations and voting on findings (a) In general. This subsection is based on Article 39(b) and on the second, third, and fifth sentences of paragraph 74 d(1) of MCM, 1969 (Rev.). The first sentence of that paragraph is unnecessary and the fourth is covered in subsection (b) of this rule. (b) Deliberations. The first sentence of this subsection is based on the fourth sentence of paragraph 74 d(1) of MCM, 1969 (Rev.). The second sentence is new but conforms to current practice. See United States v. Hurt, 9 U.S.C.M.A. 735, 27 C.M.R. 3 (1958); United States v. Christensen, 30 C.M.R. 959 (A.F.B.R. 1961). The third sentence is based on United States v. Jackson, 6 M.J. 116, 117 (C.M.A. 1979) (Cook, J., concurring in part and dissenting in part); United States v. Smith, 15 U.S.C.M.A. 416, 35 C.M.R. 388 (1965). See also paragraph 54 b of MCM, 1969 (Rev); United States v. Ronder, 639 F.2d 931 (2d Cir. 1981). (c) Voting. Subsection (1) is based on the first sentence of Article 51(a) and on the first sentence of paragraph 73 d(2) of MCM, 1969 (Rev.). Subsection (2) is based on Article 52(a) and on the first two sentences of paragraph 74 d(3) of MCM, 1969 (Rev.). See also United States v. Guilford, 8 M.J. 598 (A.C.M.R. 1979), pet. denied, 8 M.J. 242 (1980) (holding Burch v. Louisiana, 441 U.S. 130 (1979), does not apply to courts-martial.) The discussion is based on the third sentence of paragraph 74 d(3) of MCM, 1969 (Rev.). Subsection (3) is based on the fourth sentence of paragraph 74 d(3) of MCM, 1969 (Rev.). 1986 Amendment: Subsections (4) and (5) were redesignated as subsections (5) and (6) and a new subsection (4) was inserted. New subsection (4) is based on Article 50a(e) and provides for bifurcated voting on the elements of the offense and on mental responsibility, and defines the procedures for arriving at a finding of not guilty only by reason of lack on mental responsibility. When the prosecution had the burden of proving mental responsibility beyond a reasonable doubt, the same as the burden regarding the elements of the offense, the members were unlikely to confuse the two general issues. Without any procedure for bifurcated voting under the 1984 amendment, substantial confusion might result if the members were required to vote simultaneously on whether the defense has proven lack of mental responsibility by clear and convincing evidence, and whether the prosecution h a s p r o v e n t h e e l e m e n t s o f t h e o f f e n s e b e y o n d a r e a s o n a b l e doubt. Each issue might result in a different number of votes. Bifurcated voting is also necessary to provide the finding of “not guilty only by reason of lack of mental responsibility” provided
for in R.C.M. 918(a). But see Carroll, Insanity Defense Reform, 114 Mil. L. Rev. 183, 216 (1986). Subsection (4) is new to the Manual but it conforms to practice generally followed in courts-martial. Paragraph 74 d(2) of MCM, 1969 (Rev.) suggested that findings as to a specification and all lesser offenses included therein would be resolved by a single ballot. Such an approach is awkward, however, especially when there are multiple lesser included offenses. It is more appropriate to allow separate consideration of each included offense until a f i n d i n g o f g u i l t y h a s b e e n r e a c h e d . S e e M i l i t a r y J u d g e s Benchbook, DA Pam 27–9, para. 2.28 (May 1982). Subsection (5) is based on the second sentence of Article 51(b) and on paragraph 74 d(2) of MCM, 1969 (Rev.). See also United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). (d) Action after findings are reached. This subsection and the discussion are based on paragraphs 74 f(1) and 74 g of MCM, 1969 (Rev.). See United States v. Justice, 3 M.J. 451 (C.M.A. 1977); United States v. Ricketts, 1 M.J. 78 (C.M.A. 1975); United States v. McAllister, 19 U.S.C.M.A. 420, 42 C.M.R. 22 (1970). The use of findings worksheets is encouraged. See United States v . H e n d e r s o n , 1 1 M . J . 3 9 5 ( C . M . A . 1 9 8 1 ) ; U n i t e d S t a t e s v . Barclay, 6 M.J. 785 (A.C.M.R. 1978), pet. denied, 7 M.J. 71 (1979). 1986 Amendment: The word “sentence” was changed to “findings” to correct an error in MCM, 1984. Rule 922 Announcement of findings (a) In general. This subsection is based on Article 53 and on the first sentence of paragraph 74 g of MCM, 1969 (Rev.). See also United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). The d i s c u s s i o n i s b a s e d o n U n i t e d S t a t e s v . R i c k e t t s , 1 M . J . 7 8 ( C . M . A . 1 9 7 5 ) ; U n i t e d S t a t e s v . S t e w a r t , 4 8 C . M . R . 8 7 7 (A.C.M.R. 1974). The requirement for the announcement to include a statement of the percentage of members concurring in each finding of guilty and that the vote was by secret written ballot has been deleted. Article 53 does not require such an announcement and when instructions on such matters are given (see R.C.M. 920(e)(6)), the members are “presumed to have complied with the instructions given them by the judge,” United States v. Ricketts, supra at 82. See United States v. Jenkins, 12 M.J. 222 (C.M.A. 1982). Cf. United States v. Hendon, 6 M.J. 171, 173-174 (C.M.A. 1979). (b) Findings by members. This subsection is based on the second sentence of paragraph 74 g of MCM, 1969 (Rev.). The last sentence is based on the last sentence of paragraph 70 b of MCM, 1969 (Rev.). 1986 Amendment: R.C.M. 922(b) was amended by adding a new paragraph (2) as a conforming change to the amendment in R.C.M. 1004(a) making unanimity on findings a precondition to a capital sentencing proceeding. The Rule and the Discussion also preclude use of the reconsideration procedure in R.C.M. 924 to change a nonunanimous finding of guilty to a unanimous verdict for purposes of authorizing a capital sentencing proceeding. Thus, if a nonunanimous finding of guilty is reaffirmed on reconsideration and the vote happens to be unanimous, the president of the court-martial does not make a statement as to unanimity. (c) Findings by military judge. This subsection is based on the second sentence of the last paragraph of paragraph 70 b and on ANALYSIS the second paragraph of paragraph 74 g of MCM, 1969 (Rev.) See also Article 39(a). (d) Erroneous announcement. This subsection is based on the third and fourth sentences of paragraph 74 g of MCM, 1969 (Rev.). (e) Polling prohibited. This subsection is based on the requirement in Article 51(a) for voting by secret written ballot. This distinguishes military from civilian practice (see, Fed. R. Crim. P. 31(d)). Mil. R. Evid. 606(b) permits adequately broad questioning to ascertain whether a finding is subject to impeachment due to extraneous factors. To permit general inquiry into other matters, including actual votes of members, would be contrary to Article 51(a) and Article 39(b). See United States v. Bishop, 11 M.J. 7 (C.M.A. 1981); United States v. West, 23 U.S.C.M.A. 77, 48 C.M.R. 548 (1974) (Duncan, C.J.); United States v. Nash, 5 U.S.C.M.A. 550, 555, 18 C.M.R. 174, 179 (1955) (Brosman, J. concurring); United States v. Connors, 23 C.M.R. 636 (A.B.R. 1957); United States v. Tolbert, 14 C.M.R. 613 (A.F.B.R. 1953). Contra Caldwell, Polling the Military Jury, 11 The Advocate 53 (Mar- Apr, 1979); Feld, A Manual for Courts-Martial Practice and Appeal § 72 (1957). See also United States v. Hendon, supra. Rule 923 Impeachment of findings App. 21, R.C.M. 924(b) This rule is based on United States v. Bishop, 11 M.J. 7 (C.M.A. 1981); United States v. West, 23 U.S.C.M.A. 77, 48 C.M.R. 548 (1974). See also United States v. Witherspoon, 12 M.J. 588 (A.C.M.R. 1981), pet. granted, 13 M.J. 210 (C.M.A. 1982), aff’d 16 M.J. 252 (1983); United States v. Hance, 10 M.J. 622 (A.C.M.R. 1980); United States v. Zinsmeister, 48 C.M.R. 931, 935 (A.F.C.M.R.), pet. denied, 23 U.S.C.M.A. 620 (1974); United States v. Perez-Pagan, 47 C.M.R. 719 (A.C.M.R. 1973); United States v. Connors, 23 C.M.R. 636 (A.B.R. 1957); Mil. R. Evid. 606(b). As to inconsistent findings, see Harris v. Rivera , 454 U.S. 339 (1981); Dunn v. United States, 284 U.S. 390 (1932); United States v. Gaeta, 14 M.J. 383, 391 n. 10 (C.M.A. 1983); United States v. Ferguson, 21 U.S.C.M.A. 200, 44 C.M.R. 254 (1972); United States v. Jules, 15 C.M.R. 517 (A.B.R. 1954). But see United States v. Reid, 12 U.S.C.M.A. 497, 31 C.M.R. 83 (1961); United States v. Butler, 41 C.M.R. 620 (A.C.M.R. 1969). The rule is not intended to prevent a military judge from setting aside improper findings. This would include improper findings of guilty of “mutually exclusive” offenses, for example, larceny (as a perpetrator) of certain property and receiving the same stolen property. In such a case, the members should be instructed before they deliberate that they may convict of no more than one of the two offenses. See Milanovich v. United States, 365 U.S. 551 (1961); United States v. Cartwright, 13 M.J. 174 ( C . M . A . 1 9 8 2 ) ; U n i t e d S t a t e s v . C l a r k , U . S . C . M . A . 1 4 0 , 4 2 C.M.R. 332 (1970); United States v. Ford, 12 U.S.C.M.A. 3, 30 C.M.R. 3 (1960). Rule 924 Reconsideration of findings (a) Time for reconsideration. This subsection is based on Article 52(c) and on the fourth and fifth sentences of paragraph 74 d(3) of MCM, 1969 (Rev.). (b) Procedure. This subsection is based on Articles 52(a) and 53(c) and on the last three sentences of paragraph 74 d(3) of A21-69
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App. 21, R.C.M. 920(d) APPENDIX 21<br />
Cir. 1981); United States v. Calabrase, 645 F.2d 1379 (10th Cir.),<br />
cert. denied, 454 U.S. 831 (1981).<br />
(e) Required instructions. This subsection is based on Article<br />
51(c) and on the first paragraph of paragraph 73 a of MCM, 1969<br />
(Rev.). See also United States v. Steinruck, 11 M.J. 322 (C.M.A.<br />
1981); United States v. Moore, supra; United States v. Clark, 1<br />
U.S.C.M.A. 201, 2 C.M.R. 107 (1952). As to whether the defense<br />
may affirmatively waive certain instructions (e.g., lesser included<br />
offenses) which might otherwise be required, see United States v.<br />
Johnson, 1 M.J. 137 (C.M.A. 1975); United States v. Mundy, 2<br />
U.S.C.M.A. 500, 9 C.M.R. 130 (1953). See generally Cooper,<br />
The Military Judge: More Than a Mere Reference, The <strong>Army</strong><br />
Lawyer (Aug. 1976) 1; Hilliard, The Waiver Doctrine: Is It Still<br />
Viable?, 18 A.F.L. Rev. 45 (Spring 1976).<br />
1986 Amendment: Subsection (2) was amended to require the<br />
accused to waive the bar of the statute of limitations if the<br />
accused desires instructions on any lesser included offense otherwise<br />
barred. Spaziano v. Florida, 468 U.S. 447 (1984). This<br />
o v e r t u r n s t h e h o l d i n g s i n U n i t e d S t a t e s v . W i e d e m a n n , 1 6<br />
U.S.C.M.A. 356, 36 C.M.R. 521 (1966) and United States v.<br />
Cooper, 16 U.S.C.M.A. 390, 37 C.M.R. 10 (1966). The same rule<br />
applies in trials by military judge alone. Article 51(d). This is<br />
consistent with Article 79 because an offense raised by the evidence<br />
but barred by the statute of limitations is “necessarily<br />
included in the offense charged,” unless the accused waives the<br />
statute of limitations.<br />
The first paragraph in the discussion is based on United States<br />
v. Jackson, 12 M.J. 163 (C.M.A. 1981); United States v. Waldron,<br />
1 1 M . J . 3 6 ( C . M . A . 1 9 8 1 0 ; U n i t e d S t a t e s v . E v a n s , 1 7<br />
U.S.C.M.A. 238, 38 C.M.R. 36 (1967); United States v. Clark,<br />
supra. See United States v. Johnson, 637 F.2d 1224 (9th Cir.<br />
1980); United States v. Burns, 624 F.2d 95 (10th Cir), cert.<br />
denied, 449 U.S. 954 (1980).<br />
The third paragraph in the discussion is based on paragraph 73<br />
a of MCM, 1969 (Rev.) and on Military Judges Benchbook, DA<br />
Pam 27–9 Appendix A. (May 1982). See also United States v.<br />
Thomas, 11 M.J. 388 (C.M.A.1981); United States v. Fowler, 9<br />
M.J. 149 (C.M.A. 1980); United States v. James, 5 M.J. 382<br />
(C.M.A. 1978) (uncharged misconduct); United States v. Robinson,<br />
11 M.J. 218 (C.M.A. 1981) (character evidence); United<br />
States v. Wahnon, 1 M.J. 144 (C.M.A. 1975) (effect of guilty plea<br />
o n o t h e r c h a r g e s ) ; U n i t e d S t a t e s v . M i n t e r , 8 M . J . 8 6 7<br />
(N.C.M.R.), aff’d, 9 M.J. 397 (C.M.A. 1980); United States v.<br />
Prowell, 1 M.J. 612 (A.C.M.R. 1975) (effect of accused’s absence<br />
from trial); United States v. Jackson, 6 M.J. 116 (C.M.A.<br />
1 9 7 9 ) ; U n i t e d S t a t e s v . F a r r i n g t o n , 1 4 U . S . C . M . A . 6 1 4 , 3 4<br />
C.M.R. 394 (1964) (accused’s failure to testify). The list is not<br />
exhaustive.<br />
The fourth paragraph in the discussion is based on paragraph<br />
73 c of MCM, 1969 (Rev.). See also United States v. Grandy, 11<br />
M.J. 270 (C.M.A. 1981).<br />
1986 Amendment: Subsection (e)(5)(D) was amended to conform<br />
to amendments to R.C.M. 916(b).<br />
1998 Amendment: This change to R.C.M. 920(e) implemented<br />
Congress’ creation of a mistake of fact defense for carnal knowle<br />
d g e . A r t i c l e 1 2 0 ( d ) , U C M J , p r o v i d e s t h a t t h e a c c u s e d m u s t<br />
prove by a preponderance of the evidence that the person with<br />
whom he or she had sexual intercourse was at least 12 years of<br />
A21-68<br />
age, and that the accused reasonably believed that this person was<br />
at least 16 years of age.<br />
2007 Amendment: Changes to this paragraph, deleting “carnal<br />
knowledge” and consistent language, are based on section 552 of<br />
the National Defense Authorization Act for Fiscal Year 2006,<br />
P.L. 109-163, 6 January 2006, which supersedes the previous<br />
paragraph 45, Rape and Carnal Knowledge, in its entirety and<br />
replaces paragraph 45 with Rape, sexual assault and other sexual<br />
misconduct.<br />
(f) Waiver. This subsection is based on the last two sentences in<br />
Fed. R. Crim. P. 30. See also United States v. Grandy, supra;<br />
United States v. Salley, 9 M.J. 189 (C.M.A. 1980).<br />
Rule 921 Deliberations and voting on findings<br />
(a) In general. This subsection is based on Article 39(b) and on<br />
the second, third, and fifth sentences of paragraph 74 d(1) of<br />
MCM, 1969 (Rev.). The first sentence of that paragraph is unnecessary<br />
and the fourth is covered in subsection (b) of this rule.<br />
(b) Deliberations. The first sentence of this subsection is based<br />
on the fourth sentence of paragraph 74 d(1) of MCM, 1969<br />
(Rev.). The second sentence is new but conforms to current practice.<br />
See United States v. Hurt, 9 U.S.C.M.A. 735, 27 C.M.R. 3<br />
(1958); United States v. Christensen, 30 C.M.R. 959 (A.F.B.R.<br />
1961). The third sentence is based on United States v. Jackson, 6<br />
M.J. 116, 117 (C.M.A. 1979) (Cook, J., concurring in part and<br />
dissenting in part); United States v. Smith, 15 U.S.C.M.A. 416, 35<br />
C.M.R. 388 (1965). See also paragraph 54 b of MCM, 1969<br />
(Rev); United States v. Ronder, 639 F.2d 931 (2d Cir. 1981).<br />
(c) Voting. Subsection (1) is based on the first sentence of Article<br />
51(a) and on the first sentence of paragraph 73 d(2) of MCM,<br />
1969 (Rev.).<br />
Subsection (2) is based on Article 52(a) and on the first two<br />
sentences of paragraph 74 d(3) of MCM, 1969 (Rev.). See also<br />
United States v. Guilford, 8 M.J. 598 (A.C.M.R. 1979), pet.<br />
denied, 8 M.J. 242 (1980) (holding Burch v. Louisiana, 441 U.S.<br />
130 (1979), does not apply to courts-martial.) The discussion is<br />
based on the third sentence of paragraph 74 d(3) of MCM, 1969<br />
(Rev.).<br />
Subsection (3) is based on the fourth sentence of paragraph 74<br />
d(3) of MCM, 1969 (Rev.).<br />
1986 Amendment: Subsections (4) and (5) were redesignated<br />
as subsections (5) and (6) and a new subsection (4) was inserted.<br />
New subsection (4) is based on Article 50a(e) and provides for<br />
bifurcated voting on the elements of the offense and on mental<br />
responsibility, and defines the procedures for arriving at a finding<br />
of not guilty only by reason of lack on mental responsibility.<br />
When the prosecution had the burden of proving mental responsibility<br />
beyond a reasonable doubt, the same as the burden regarding<br />
the elements of the offense, the members were unlikely to<br />
confuse the two general issues. Without any procedure for bifurcated<br />
voting under the 1984 amendment, substantial confusion<br />
might result if the members were required to vote simultaneously<br />
on whether the defense has proven lack of mental responsibility<br />
by clear and convincing evidence, and whether the prosecution<br />
h a s p r o v e n t h e e l e m e n t s o f t h e o f f e n s e b e y o n d a r e a s o n a b l e<br />
doubt. Each issue might result in a different number of votes.<br />
Bifurcated voting is also necessary to provide the finding of “not<br />
guilty only by reason of lack of mental responsibility” provided