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. 1301(e) APPENDIX 21 otherwise make available, a military attorney to represent the accused at a summary court-martial. This rule does not provide a right to consult with counsel prior to a summary court-martial. There is no constitutional or statutory basis for such a right. United States v. Mack, 9 M.J. 300, 320-21 (C.M.A. 1980). A requirement for such consultation, although desirable under some circumstances, is unfeasible under others wherein it impedes the purposes of summary courts-martial by significantly delaying the proceedings. At present, the admissibility of a summary court-martial without a prior opportunity to consult with counsel in subsequent courts-martial has not been fully resolved. United States v. Mack, supra; United States v. Booker, 5 M.J. 238 (C.M.A. 1977). See United States v. Kuehl, 11 M.J. 126 (C.M.A. 1981). (f) Power to obtain witnesses and evidence. This subsection is based on Article 46 and 47 and paragraphs 79 b and 115 of the MCM, 1969 (Rev.). (g) Secretarial limitations. This subsection is new and recognizes the implicit authority of the service secretaries to provide additional rules, such as those governing the exercise of summary court-martial jurisdiction. Rule 1302 Convening a summary court-martial (a) Who may convene summary courts-martial. This subsection is based on Article 24(a) and paragraph 5 c of MCM, 1969 (Rev.). (b) When convening authority is the accuser. This subsection is based on the second paragraph of paragraph 5 c of MCM, 1969 (Rev.). (c) Procedure. This subsection clarifies that a separate written order is not necessary to convene a summary court-martial; this may be done directly on the charge sheet. Because there is little difference between summary, special, and general courts-martial with respect to the initiation and forwarding of charges, these procedures are simply referred to in the rule. Rule 1303 Right to object to trial by summary court-martial This rule is based on Article 20 and the second and third sentences of paragraph 16 a of MCM, 1969 (Rev.). Arraignment ends the right to object because arraignment is the point at which the accused is “brought to trial” within the meaning of Article 20. Rule 1304 Trial procedure (a) Pretrial duties. This subsection is based on paragraphs 79 c and 33 d of MCM, 1969 (Rev.). (b) Summary court-martial procedure. Paragraph 79 a of MCM, 1969 (Rev.), suggested that the summary court-martial use the general court-martial trial guide. However, the general court-martial trial guide is inadequate for the person who ordinarily conducts the summary court-martial. The trial guide in Appendix 9 of this Manual was drafted to assist the lay presiding officer at summary courts-martial and incorporate the rules prescribed in this chapter. Subsection (1) is based on paragraph 79 d(1) of MCM, 1969 (Rev.). The requirement to inform the accused of the date of referral was added to subsection (1)(B) to assist the accused in making motions to dismiss or for other relief. Subsection (1)(E) is A21-96 intended to more fully inform the accused of the scope of the evidence (testimonial, documentary, and physical) expected to be introduced. Subsection (1)(F) is new and is designed to assist the accused in making motions and presenting evidence in defense and in extenuation and mitigation. Subsection (1)(G) is new and is designed to assure the accused that no evidence, including statements previously made to the officer detailed to conduct the summary court-martial, will be considered unless admitted in a c c o r d a n c e w i t h t h e M i l i t a r y R u l e s o f E v i d e n c e . S u b s e c t i o n (1)(H) is new. Subsection (1)(L) is expanded to assure the acc u s e d t h a t t h e e x e r c i s e o f r i g h t s g u a r a n t e e d u n d e r t h e F i f t h Amendment and Article 31 will not be held against the accused. Subsection (2)(A) is based on Article 20 and the second paragraph of paragraph 79 d(1) of MCM, 1969 (Rev.). Subsection (2)(B) is based on paragraph 79 d(2) of MCM, 1969 (Rev.). Subsection (2)(C) is new. MCM, 1969 (Rev.) did not clarify the timing of motions in summary courts-martial. Subsection (2)(D)(ii) is new and designed to standardize the guilty plea inquiry by referring the summary court-martial to R.C.M. 909 which prescribed the inquiry for summary, special, and general courts-martial. Subsections (2)(D)(i) and (iii) through (v) are based on paragraph 79 d(2) of MCM, 1969 (Rev.). The provision in paragraph 79 d(2) which provided for hearing evidence on the offense(s) in a guilty plea case is omitted here because this procedure is covered in R.C.M. 1001(b)(4). Subsection (2)(E)(i) is based on Mil. R. Evid. 101 and 1101. Subsections (2)(E)(ii) through (iv) are based on paragraph 79 d (3) of MCM, 1969 (Rev.). Subsections (2)(F)(i) through (iii) are based on paragraph 79 d(4) of MCM, 1969 (Rev.). Note that the summary court-martial may consider otherwise admissible records from the accused’s personnel file under R.C.M. 1001(b)(2). This was not permitted under MCM, 1969 (Rev.) before the amendment of paragraph 75 on 1 August 1981. See Exec. Order No. 12315 (July 29, 1981). Subsection (2)(F)(iv) is new and fulfills the summary court-martial’s post-trial responsibility to protect the interests of the accused by informing the accused of post-trial rights. S u b s e c t i o n ( 2 ) ( F ) ( v ) i s n e w a n d d e s i g n e d t o i n f o r m t h e convening authority of any suspension recommendation and deferment request before receipt of the record of trial. Subsection (2)(F)(vi) modifies paragraph 79 d(4) of MCM, 1969 (Rev.). It recognizes the custodial responsibility of the summary court-martial over an accused sentenced to confinement until the accused is delivered to the commander or the commander’s designee. It does not address the subsequent disposition of the accused, as this is a prerogative of the commander. Rule 1305 Record of trial (a) In general. This rule is based on paragraphs 79 e and 91 c of MCM, 1969 (Rev.) insofar as they prescribed that the record of trial of a summary court-martial will consist of a notation of key events at trial and insofar as they permitted the convening or higher authority to require additional matters in the record. Additional requirements may be established by the Secretary concerned, the convening authority, or other competent authority. The modification of the format of the charge sheet (see Appendix 4) eliminated it as the form for the record of trial of a summary court-martial. A separate format is now provided at Appendix 15.
(b) Contents. This subsection is based on paragraphs 79 e and 91c of MCM, 1969 (Rev.). 1986 Amendment: R.C.M. 1305(b)(2) was amended to delete the requirement that the record of trial in summary courts-martial reflect the number of previous convictions considered. The Committee concluded that this requirement had only slight utility and also noted that DD Form 2329, which serves as the record of trial in summary courts-martial, has no entry for this information. The Committee also noted that the Services each have requirements for retaining documents introduced at summary courts-martial with the record of trial. (c) Authentication. This subsection is based on paragraph 79 e of MCM, 1969 (Rev.). 2004 Amendment: This subsection was amended to require that summary courts-martial authenticate the original record of trial, as is currently the procedure for special and general courts-martial. (d) Forwarding copies of the record. Subsection (1) is based on Article 60(b)(2). Subsection (2) is based on the third paragraph of paragraph 91c of MCM, 1969 (Rev.). Subsection (3) is selfexplanatory. 2001 Amendment: Subsection (d)(2) was amended to strike the reference to “subsection (e)(1)” and insert a reference to “subsec- ANALYSIS App. 21, R.C.M. 1306(d) t i o n ( d ) ( 1 ) ” t o r e f l e c t t h e 1 9 9 5 a m e n d m e n t t h a t r e d e s i g n a t e d R.C.M. 1305(e) as R.C.M. 1305(d). Rule 1306 Post-trial procedure (a) Accused’s post-trial petition. This subsection is based on Article 60(b).Cf. Article 38(c). (b) Convening authority’s action. Subsection (1) refers to the detailed provisions concerning the convening authority’s initial review and action in R.C.M. 1107. The time period is based on Article 60(b)(1). Subsections (2) through (4) are based on paragraph 90 e of the MCM, 1969 (Rev.). Subsection (2) is modified to reflect that the accused ordinarily will receive a copy of the record before action is taken. See Article 60(b)(2). 2004 Amendment: The cross-reference to subsection R.C.M. 1105(c)(3) is amended to R.C.M. 1105(c)(2) to conform to the 1987 Change 3 amendment that re-designated R.C.M. 1105(c)(3) as R.C.M. 1105(c)(2). (c) Review by a judge advocate. This subsection is based on Article 64. (d) Review by the Judge Advocate General. This subsection is based on Article 69 and refers to the detailed provisions governing such requests for review in R.C.M. 1201. A21-97
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(b) Contents. This subsection is based on paragraphs 79 e and<br />
91c of MCM, 1969 (Rev.).<br />
1986 Amendment: R.C.M. 1305(b)(2) was amended to delete<br />
the requirement that the record of trial in summary courts-martial<br />
reflect the number of previous convictions considered. The Committee<br />
concluded that this requirement had only slight utility and<br />
also noted that DD Form 2329, which serves as the record of trial<br />
in summary courts-martial, has no entry for this information. The<br />
Committee also noted that the Services each have requirements<br />
for retaining documents introduced at summary courts-martial<br />
with the record of trial.<br />
(c) Authentication. This subsection is based on paragraph 79 e of<br />
MCM, 1969 (Rev.).<br />
2004 Amendment: This subsection was amended to require that<br />
summary courts-martial authenticate the original record of trial, as<br />
is currently the procedure for special and general courts-martial.<br />
(d) Forwarding copies of the record. Subsection (1) is based on<br />
Article 60(b)(2). Subsection (2) is based on the third paragraph of<br />
paragraph 91c of MCM, 1969 (Rev.). Subsection (3) is selfexplanatory.<br />
2001 Amendment: Subsection (d)(2) was amended to strike the<br />
reference to “subsection (e)(1)” and insert a reference to “subsec-<br />
ANALYSIS<br />
App. 21, R.C.M. 1306(d)<br />
t i o n ( d ) ( 1 ) ” t o r e f l e c t t h e 1 9 9 5 a m e n d m e n t t h a t r e d e s i g n a t e d<br />
R.C.M. 1305(e) as R.C.M. 1305(d).<br />
Rule 1306 Post-trial procedure<br />
(a) Accused’s post-trial petition. This subsection is based on Article<br />
60(b).Cf. Article 38(c).<br />
(b) Convening authority’s action. Subsection (1) refers to the<br />
detailed provisions concerning the convening authority’s initial<br />
review and action in R.C.M. 1107. The time period is based on<br />
Article 60(b)(1). Subsections (2) through (4) are based on paragraph<br />
90 e of the MCM, 1969 (Rev.). Subsection (2) is modified<br />
to reflect that the accused ordinarily will receive a copy of the<br />
record before action is taken. See Article 60(b)(2).<br />
2004 Amendment: The cross-reference to subsection R.C.M.<br />
1105(c)(3) is amended to R.C.M. 1105(c)(2) to conform to the<br />
1987 Change 3 amendment that re-designated R.C.M. 1105(c)(3)<br />
as R.C.M. 1105(c)(2).<br />
(c) Review by a judge advocate. This subsection is based on<br />
Article 64.<br />
(d) Review by the Judge Advocate General. This subsection is<br />
based on Article 69 and refers to the detailed provisions governing<br />
such requests for review in R.C.M. 1201.<br />
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