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

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
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