Legal Services Military Judges’ Benchbook · 2008. 3. 25. · Initial Session Through...

Department of the Army Pamphlet 27–9

Legal Services

Military Judges’ Benchbook

Headquarters Department of the Army Washington, DC 15 September 2002

UNCLASSIFIED

SUMMARY of CHANGE DA PAM 27–9 Military Judges’ Benchbook

This revised Department of the Army Pamphlet incorporates the substantive criminal law found in the Manual for Courts-Martial, through the 2002 Edition; decisions of military and higher courts; and comments and opinions of individual legal specialists on criminal law. Highlighted below are some of the changes to the 2001 edition of this Benchbook:

o Deliberations instructions have been clarified to specifically prohibit the members communicating to or receiving communications from anyone outside the deliberations room during deliberations on findings and on sentence.

o The maximum punishment inquiry has been clarified to specifically ask counsel whether they believe a fine is appropriate. A note has been added to remind the military judge that if a fine is not appropriate, it should not ordinarily be listed on the sentence worksheet.

o A new instruction on the effect of a punitive discharge on retirement benefits has been added.

o The wording of the instruction on the effect of Article 58(a) in the U.S. Army has been clarified.

o The wording of the reconsideration instructions for findings and sentence has been clarified.

o The wording of the “Spill-Over” instruction has been clarified.

o Additional case citations have been added to the Mistake of Fact instruction.

o The following changes as a result of the 2002 Executive Order have been added:

--Changing the sentence-enhancing value from $100.00 to $500.00.

--Clarifying mandatory punishments for premeditated murder and felony murder as “confinement for life with eligibility for parole.”

--Clarifying the requirement that one actor be married to someone other than the co-actor in an adultery case.

o An enhanced Other Crimes, Wrongs or Acts Evidence instruction has been added, which includes an instruction for Military Rule of Evidence 413 and 414 cases.

o A script for DuBay proceedings has been added as Appendix K.

RESERVED

FOREWORD

This Benchbook should be regarded as a supplement to the Uniform Code of Military Justice, as amended; the Manual for Courts-Martial, 2002 Edition; opinions of appellate courts; other departmental publications dealing primarily with trial procedure; and similar legal reference material. Statutes, Executive Orders, and appellate decisions are t h e p r i n c i p a l s o u r c e s f o r t h i s B e n c h b o o k , a n d s u c h p u b l i c a t i o n s , r a t h e r t h a n t h i s Benchbook, should be cited as legal authority.

Headquarters Department of the Army Pamphlet 27–9 Washington, DC 15 September 2002

Legal Services

Military Judges’ Benchbook

*Department of the Army

H i s t o r y . T h i s p u b l i c a t i o n w a s o r i g i n a l l y published on 01 April 2001. This electronic

edition publishes the basic 2001 edition and incorporates change 1.

Summary. This pamphlet sets forth pattern instructions and suggested procedures applicable to trials by general and special court-m a r t i a l . I t h a s b e e n p r e p a r e d p r i m a r i l y t o meet the needs of military judges. It is also i n t e n d e d a s a p r a c t i c a l g u i d e f o r c o u n s e l , staff judge advocates, commanders, legal specialists, and others engaged in the administration of military justice.

Applicability. This pamphlet applies to the Active Army, the Army National Guard of the United States, and the U.S. Army Reserve.

P r o p o n e n t a n d e x c e p t i o n a u t h o r i t y . The proponent of this pamphlet is The Judge A d v o c a t e G e n e r a l ( T J A G ) . T h e p r o p o n e n t has the authority to approve exceptions to

this publication that are consistent with controlling law and regulation. The proponent may delegate this approval authority, in writing, to a division chief within the proponent agency in the grade of colonel or the civilian equivalent.

Suggested Improvements. Users are invited to send comments and suggested imp r o v e m e n t s t o t h e M i l i t a r y J u d g e s ’ B e n c h b o o k o n D A F o r m 2 0 2 8 ( R e c o m mended Changes to Publications and Blank Forms) directly to the Office of the Chief Trial Judge, U.S. Army Legal Services Agency, ATTN: JALS-TJ, 901 N. Stuart St., Arlington, VA 22203.

Distribution. Active Army, USAR, ARNG: To be distributed in accordance with Initial Distribution Number 094060.

Contents (Listed by paragraph and page number)

Chapter 1 INTRODUCTION, page 2 Purpose and scope. • 1–1, page 2 References. • 1–5, page 5

Chapter 2 TRIAL PROCEDURE AND INSTRUCTIONS, page 8

Section I Initial Session Through Arraignment, page 8 PROCEDURAL GUIDE FOR ARTICLE 39(A) SESSION • 2–1,

page 8 RIGHTS TO COUNSEL • 2–1–1, page 9 FORUM RIGHTS • 2–1–2, page 10 ARRAIGNMENT • 2–1–3, page 13

Section II Guilty Plea Inquiry, page 14 GUILTY PLEA INTRODUCTION • 2–2–1, page 14 STIPULATION OF FACT INQUIRY • 2–2–2, page 16 GUILTY PLEA FACTUAL BASIS • 2–2–3, page 18 MAXIMUM PUNISHMENT INQUIRY • 2–2–4, page 19 IF NO PRETRIAL AGREEMENT EXISTS • 2–2–5, page 20 PRETRIAL AGREEMENT (JUDGE ALONE) • 2–2–6, page 20 PRETRIAL AGREEMENT (MEMBERS) • 2–2–7, page 24 ACCEPTANCE OF GUILTY PLEA • 2–2–8, page 27

Section III Judge Alone (Contested Findings), page 30 TRIAL PROCEEDS WITH GOVERNMENT CASE • 2–3–1,

page 30

TRIAL RESUMES WITH THE DEFENSE CASE, IF ANY • 2–3–2, page 30

REBUTTAL AND SURREBUTTAL, IF ANY • 2–3–3, page 30 ANNOUNCEMENT OF FINDINGS • 2–3–4, page 31

Section IV Judge Alone (Sentencing), page 32 ANNOUNCEMENT OF SENTENCE • 2–4–1, page 33 POST-TRIAL AND APPELLATE RIGHTS ADVICE • 2–4–2,

page 34

Section V Court Members (Contested), page 36 PRELIMINARY INSTRUCTIONS • 2–5, page 36 VOIR DIRE • 2–5–1, page 42 INDIVIDUAL VOIR DIRE • 2–5–2, page 46 CHALLENGES • 2–5–3, page 46 ANNOUNCEMENT OF PLEA • 2–5–4, page 47 TRIAL ON MERITS • 2–5–5, page 48 TRIAL RESUMES WITH DEFENSE CASE, IF ANY • 2–5–6,

page 48 REBUTTAL AND SURREBUTTAL, IF ANY • 2–5–7, page 49 DISCUSSION OF FINDINGS INSTRUCTIONS • 2–5–8, page 49 PREFATORY INSTRUCTIONS ON FINDINGS • 2–5–9, page 50 LESSER INCLUDED OFFENSE(S) • 2–5–10, page 51 OTHER APPROPRIATE INSTRUCTIONS • 2–5–11, page 52 CLOSING SUBSTANTIVE INSTRUCTIONS ON FINDINGS

• 2–5–12, page 52 FINDINGS ARGUMENT • 2–5–13, page 53 PROCEDURAL INSTRUCTIONS ON FINDINGS • 2–5–14,

page 53 PRESENTENCING SESSION • 2–5–15, page 56 FINDINGS • 2–5–16, page 57

*This pamphlet changes DA Pamphlet 27-9, 01 April 2001.

DA PAM 27–9 • 15 September 2002

UNCLASSIFIED i

Contents—Continued

SENTENCING PROCEEDINGS • 2–5–17, page 58 REBUTTAL AND SURREBUTTAL, IF ANY • 2–5–18, page 59 DISCUSSION OF SENTENCING INSTRUCTIONS • 2–5–19,

page 59 SENTENCING ARGUMENTS • 2–5–20, page 60 SENTENCING INSTRUCTIONS • 2–5–21, page 60 TYPES OF PUNISHMENT • 2–5–22, page 62 OTHER INSTRUCTIONS • 2–5–23, page 68 CONCLUDING SENTENCING INSTRUCTIONS • 2–5–24,

page 72 ANNOUNCEMENT OF SENTENCE • 2–5–25, page 74 POST-TRIAL AND APPELLATE RIGHTS ADVICE • 2–5–26,

page 76

Section VI Court Members (Sentencing Only), page 77 PRELIMINARY INSTRUCTIONS • 2–6–1, page 79 VOIR DIRE • 2–6–2, page 83 INDIVIDUAL VOIR DIRE • 2–6–3, page 86 CHALLENGES • 2–6–4, page 86 SENTENCING PROCEEDINGS • 2–6–5, page 87 REBUTTAL AND SURREBUTTAL, IF ANY • 2–6–6, page 88 DISCUSSION OF SENTENCING INSTRUCTIONS • 2–6–7,

page 88 SENTENCING ARGUMENTS • 2–6–8, page 88 SENTENCING INSTRUCTIONS • 2–6–9, page 89 TYPES OF PUNISHMENT • 2–6–10, page 90 OTHER INSTRUCTIONS • 2–6–11, page 99 CONCLUDING SENTENCING INSTRUCTIONS • 2–6–12,

page 103 ANNOUNCEMENT OF SENTENCE • 2–6–13, page 105 POST-TRIAL AND APPELLATE RIGHTS ADVICE • 2–6–14,

page 106

Section VII Miscellaneous Procedural Guides, page 108 WAIVER OF STATUTORY WAITING PERIOD • 2–7–1,

page 108 PRO SE REPRESENTATION • 2–7–2, page 109 WAIVER OF CONFLICT-FREE COUNSEL (DC

REPRESENTING MULTIPLE ACCUSED) • 2–7–3, page 113 PRETRIAL AGREEMENT: DISMISSAL OF CHARGE CLAUSE

• 2–7–4, page 115 PRETRIAL AGREEMENT: TESTIFY IN ANOTHER CASE

• 2–7–5, page 116 PRETRIAL AGREEMENT: OPERATION OF ARTICLE 58a ON

A SUSPENDED SENTENCE • 2–7–6, page 117 PRETRIAL AGREEMENT: SUSPENSION WITHOUT

DEFERMENT • 2–7–7, page 118 PRETRIAL AGREEMENT: ARTICLE 32 WAIVER • 2–7–8,

page 119 PRETRIAL AGREEMENT: WAIVER OF MEMBERS • 2–7–9,

page 121 PRETRIAL AGREEMENT: WAIVER OF MOTIONS • 2–7–10,

page 122 PRETRIAL AGREEMENT: WAIVER OF MOTION FOR

ILLEGAL PRETRIAL PUNISHMENT (ARTICLE 13) SENTENCING CREDIT • 2–7–11, page 124

STATUTE OF LIMITATIONS • 2–7–12, page 127 MOTION FOR FINDING OF NOT GUILTY • 2–7–13, page 128 RECONSIDERATION INSTRUCTION (FINDINGS) • 2–7–14,

page 130 RELATIVE SEVERITY OF SENTENCE • 2–7–15, page 131 CLEMENCY (RECOMMENDATION FOR SUSPENSION)

• 2–7–16, page 132 CLEMENCY (ADDITIONAL INSTRUCTIONS) • 2–7–17,

page 133 “HUNG JURY” INSTRUCTION • 2–7–18, page 134

RECONSIDERATION INSTRUCTION (SENTENCE) • 2–7–19, page 136

COMMENT ON RIGHTS TO SILENCE OR COUNSEL • 2–7–20, page 137

CREDIT FOR ARTICLE 15 PUNISHMENT • 2–7–21, page 138 VIEWS AND INSPECTIONS • 2–7–22, page 141 ABSENT ACCUSED INSTRUCTION: PRELIMINARY

FINDINGS • 2–7–23, page 145 STIPULATIONS OF FACT AND EXPECTED TESTIMONY

(NOT IAW A PRETRIAL AGREEMENT) • 2–7–24, page 146 CONFESSIONAL STIPULATION OF FACT INQUIRY • 2–7–25,

page 148 ADVICE ON CONSEQUENCES OF VOLUNTARY ABSENCE

• 2–7–26, page 152 ARGUMENT OR REQUEST FOR A PUNITIVE DISCHARGE

• 2–7–27, page 153

Chapter 3 INSTRUCTIONS ON ELEMENTS

OF OFFENSES, page 156 PRINCIPALS—AIDING, ABETTING, COUNSELING,

COMMANDING, OR PROCURING (ARTICLE 77) • 3–1–1, page 156

JOINT OFFENDERS (ARTICLE 77) • 3–1–2, page 157 ACCESSORY AFTER THE FACT (ARTICLE 78) • 3–2–1,

page 158 CONVICTION OF LESSER INCLUDED OFFENSE (ARTICLE

79) • 3–3–1, page 160 ATTEMPTS—OTHER THAN MURDER AND VOLUNTARY

MANSLAUGHTER (ARTICLE 80) • 3–4–1, page

ATTEMPTS—VOLUNTARY MANSLAUGHTER (ARTICLE 80)

161 ATTEMPTS—MURDER, PREMEDITATED AND

UNPREMEDITATED (ARTICLE 80) • 3–4–2, page 164

• 3–4–3, page 170 CONSPIRACY (ARTICLE 81) • 3–5–1, page 174 SOLICITATION OF DESERTION OR MUTINY (ARTICLE 82)

• 3–6–1, page 177 SOLICITATION OF MISBEHAVIOR BEFORE THE ENEMY OR

SEDITION (ARTICLE 82) • 3–6–2, page 180 FRAUDULENT ENLISTMENT OR APPOINTMENT (ARTICLE

83). • 3–7–1, page 182 FRAUDULENT SEPARATION (ARTICLE 83). • 3–7–2,

page 184 EFFECTING UNLAWFUL ENLISTMENT, APPOINTMENT, OR

SEPARATION (ARTICLE 84). • 3–8–1, page 185

DESERTION WITH INTENT TO AVOID HAZARDOUS DUTY OR TO SHIRK IMPORTANT SERVICE (ARTICLE 85)

DESERTION WITH INTENT TO REMAIN AWAY PERMANENTLY (ARTICLE 85) • 3–9–1, page 187

• 3–9–2, page 190 DESERTION BEFORE NOTICE OF ACCEPTANCE OF

RESIGNATION (ARTICLE 85) • 3–9–3, page 192 ATTEMPTED DESERTION (ARTICLE 85) • 3–9–4, page 194 FAILING TO GO OR LEAVING PLACE OF DUTY (ARTICLE

86) • 3–10–1, page 196 ABSENCE FROM UNIT, ORGANIZATION, OR PLACE OF

DUTY (ARTICLE 86) • 3–10–2, page 197 ABSENCE FROM UNIT, ORGANIZATION, OR PLACE OF

DUTY WITH INTENT TO AVOID MANEUVERS OR FIELD EXERCISES (ARTICLE 86) • 3–10–3, page 200

ABANDONING WATCH OR GUARD (ARTICLE 86) • 3–10–4, page 201

MISSING MOVEMENT (ARTICLE 87) • 3–11–1, page 203 CONTEMPT TOWARD OFFICIALS BY COMMISSIONED

OFFICER (ARTICLE 88) • 3–12–1, page 205 DISRESPECT TOWARD A SUPERIOR COMMISSIONED

OFFICER (ARTICLE 89) • 3–13–1, page 207

DA PAM 27–9 • 15 September 2002 ii


ASSAULTING—STRIKING, DRAWING, LIFTING UP A WEAPON AGAINST, OFFERING VIOLENCE TO— SUPERIOR COMMISSIONED OFFICER (ARTICLE 90) • 3–14–1, page 210

WILLFUL DISOBEDIENCE OF A SUPERIOR COMMISSIONED OFFICER (ARTICLE 90) • 3–14–2, page 214

ASSAULT ON WARRANT, NONCOMMISSIONED, OR PETTY OFFICER (ARTICLE 91) • 3–15–1, page 218

WILLFUL DISOBEDIENCE OF WARRANT, NONCOMMISSIONED, OR PETTY OFFICER (ARTICLE 91) • 3–15–2, page 222

CONTEMPT OR DISRESPECT TOWARD WARRANT, NONCOMMISSIONED, OR PETTY OFFICER (ARTICLE 91) • 3–15–3, page 225

VIOLATING GENERAL ORDER OR REGULATION (ARTICLE 92) • 3–16–1, page 228

VIOLATING OTHER WRITTEN ORDER OR REGULATION (ARTICLE 92) • 3–16–2, page 231

FAILURE TO OBEY LAWFUL ORDER (ARTICLE 92)

• 3–16–3, page 233

DERELICT IN DUTY (ARTICLE 92) • 3–16–4, page 235 CRUELTY, OPPRESSION, OR MALTREATMENT OF

SUBORDINATES (ARTICLE 93) • 3–17–1, page 237 MUTINY BY REFUSING TO OBEY ORDERS OR TO

PERFORM DUTY (ARTICLE 94) • 3–18–1, page 239 MUTINY BY CREATING VIOLENCE OR DISTURBANCE

(ARTICLE 94) • 3–18–2, page 241 SEDITION (ARTICLE 94). • 3–18–3, page 242 FAILURE TO PREVENT AND SUPPRESS A MUTINY OR

SEDITION (ARTICLE 94) • 3–18–4, page 243 FAILURE TO REPORT A MUTINY OR SEDITION (ARTICLE

94) • 3–18–5, page 245 ATTEMPTED MUTINY (ARTICLE 94) • 3–18–6, page 247 RESISTING APPREHENSION (ARTICLE 95) • 3–19–1,

page 248 FLEEING APPREHENSION (ARTICLE 95) • 3–19–2, page 251 BREAKING ARREST (ARTICLE 95) • 3–19–3, page 254 ESCAPE FROM CUSTODY (ARTICLE 95) • 3–19–4, page 257 ESCAPE FROM CONFINEMENT--PRETRIAL AND POST

TRIAL CONFINEMENT (ARTICLE 95) • 3–19–5, page 260 RELEASING PRISONER WITHOUT AUTHORITY (ARTICLE

96) • 3–20–1, page 265 SUFFERING A PRISONER TO ESCAPE THROUGH NEGLECT

(ARTICLE 96) • 3–20–2, page 266 SUFFERING A PRISONER TO ESCAPE THROUGH DESIGN

(ARTICLE 96) • 3–20–3, page 267 UNLAWFUL DETENTION (ARTICLE 97) • 3–21–1, page 268 UNNECESSARY DELAY IN DISPOSING OF CASE (ARTICLE

98) • 3–22–1, page 270 FAILING TO ENFORCE OR COMPLY WITH CODE (ARTICLE

98) • 3–22–2, page 271 MISBEHAVIOR BEFORE THE ENEMY, RUNNING AWAY

(ARTICLE 99) • 3–23–1, page 272 MISBEHAVIOR BEFORE THE ENEMY—ABANDONMENT,

SURRENDER, OR DELIVERING UP OF COMMAND (ARTICLE 99) • 3–23–2, page 274

MISBEHAVIOR BEFORE THE ENEMY—ENDANGERING SAFETY OF COMMAND (ARTICLE 99) • 3–23–3, page 276

MISBEHAVIOR BEFORE THE ENEMY—CASTING AWAY ARMS OR AMMUNITION (ARTICLE 99) • 3–23–4, page 278

MISBEHAVIOR BEFORE THE ENEMY—COWARDLY CONDUCT (ARTICLE 99) • 3–23–5, page 279

MISBEHAVIOR BEFORE THE ENEMY—QUITTING PLACE OF DUTY TO PLUNDER OR PILLAGE (ARTICLE 99) • 3–23–6, page 281

MISBEHAVIOR BEFORE THE ENEMY—CAUSING FALSE ALARM (ARTICLE 99) • 3–23–7, page 283

MISBEHAVIOR BEFORE THE ENEMY—FAILURE TO DO UTMOST (ARTICLE 99) • 3–23–8, page 285

MISBEHAVIOR BEFORE THE ENEMY—FAILURE TO AFFORD RELIEF (ARTICLE 99) • 3–23–9, page 287

COMPELLING SURRENDER (ARTICLE 100) • 3–24–1, page 289

COMPELLING SURRENDER—ATTEMPTS (ARTICLE 100) • 3–24–2, page 291

STRIKING THE COLORS OR FLAG (ARTICLE 100) • 3–24–3, page 293

IMPROPER USE OF COUNTERSIGN—DISCLOSING PAROLE OR COUNTERSIGN (ARTICLE 101) • 3–25–1, page 295

GIVING DIFFERENT PAROLE OR COUNTERSIGN (ARTICLE 101) • 3–25–2, page 296

FORCING A SAFEGUARD (ARTICLE 102) • 3–26–1, page 298 FAILING TO SECURE PUBLIC PROPERTY TAKEN FROM

THE ENEMY (ARTICLE 103) • 3–27–1, page 299 CAPTURED OR ABANDONED PROPERTY—FAILURE TO

REPORT AND TURN OVER (ARTICLE 103) • 3–27–2, page 301

CAPTURED OR ABANDONED PROPERTY—DEALING IN (ARTICLE 103) • 3–27–3, page 303

LOOTING OR PILLAGING (ARTICLE 103) • 3–27–4, page 305 AIDING THE ENEMY—FURNISHING ARMS OR

AMMUNITION (ARTICLE 104) • 3–28–1, page 307 AIDING THE ENEMY—ATTEMPTING TO FURNISH ARMS

OR AMMUNITION (ARTICLE 104) • 3–28–2, page 308 AIDING THE ENEMY—HARBORING OR PROTECTING

(ARTICLE 104) • 3–28–3, page 310 AIDING THE ENEMY—GIVING INTELLIGENCE TO THE

ENEMY (ARTICLE 104) • 3–28–4, page 311 AIDING THE ENEMY—COMMUNICATING WITH THE

ENEMY (ARTICLE 104) • 3–28–5, page 312 MISCONDUCT AS PRISONER (ARTICLE 105) • 3–29–1,

page 314 MISCONDUCT OF PRISONER—MALTREATMENT OF

PRISONER (ARTICLE 105) • 3–29–2, page 316 SPYING (ARTICLE 106) • 3–30–1, page 318 ESPIONAGE (ARTICLE 106a) • 3–30A–1, page 320 ATTEMPTED ESPIONAGE (ARTICLE 106a) • 3–30A–2,

page 322 FALSE OFFICIAL STATEMENT (ARTICLE 107) • 3–31–1,

page 324 SELLING OR DISPOSING OF MILITARY PROPERTY

(ARTICLE 108) • 3–32–1, page 326 DAMAGING, DESTROYING OR LOSING MILITARY

PROPERTY (ARTICLE 108) • 3–32–2, page 330 SUFFERING MILITARY PROPERTY TO BE LOST,

DAMAGED, SOLD, OR WRONGFULLY DISPOSED OF (ARTICLE 108) • 3–32–3, page 336

NONMILITARY PROPERTY—REAL PROPERTY—WASTING OR SPOILING (ARTICLE 109) • 3–33–1, page 343

NONMILITARY PROPERTY—PERSONAL PROPERTY— DESTROYING OR DAMAGING (ARTICLE 109) • 3–33–2, page 345

HAZARDING OF VESSEL—WILLFUL (ARTICLE 110) • 3–34–1, page 347

HAZARDING OF VESSEL—THROUGH NEGLECT (ARTICLE 110) • 3–34–2, page 348

DRUNKEN OR RECKLESS OPERATION OF A VEHICLE, AIRCRAFT, OR VESSEL (ARTICLE 111) • 3–35–1, page 349

DRUNK ON DUTY (ARTICLE 112) • 3–36–1, page 356 DRUGS—WRONGFUL POSSESSION—WITH INTENT TO

DISTRIBUTE (ARTICLE 112a) • 3–37–1, page 358 DRUGS—WRONGFUL USE (ARTICLE 112a) • 3–37–2,

page 365 DRUGS, WRONGFUL DISTRIBUTION (ARTICLE 112a)

• 3–37–3, page 371

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DRUGS—WRONGFUL INTRODUCTION—WITH INTENT TO DISTRIBUTE ARTICLE 112a) • 3–37–4, page 377

DRUGS—WRONGFUL MANUFACTURE—WITH INTENT TO DISTRIBUTE (ARTICLE 112a) • 3–37–5, page 384

DRUGS—WRONGFUL IMPORTATION OR EXPORTATION (ARTICLE 112a) • 3–37–6, page 391

MISBEHAVIOR OF SENTINEL OR LOOKOUT (ARTICLE 113) • 3–38–1, page 397

DUELING (ARTICLE 114) • 3–39–1, page 399 PROMOTING A DUEL (ARTICLE 114) • 3–39–2, page 400 CONNIVING AT FIGHTING A DUEL (ARTICLE 114)

• 3–39–3, page 401 FAILURE TO REPORT A DUEL (ARTICLE 114) • 3–39–4,

page 402 MALINGERING, SELF-INFLICTED INJURY (ARTICLE 115)

• 3–40–1, page 403 RIOT (ARTICLE 116) • 3–41–1, page 405 BREACH OF THE PEACE (ARTICLE 116) • 3–41–2, page 407 PROVOKING SPEECHES OR GESTURES (ARTICLE 117)

• 3–42–1, page 408 PREMEDITATED MURDER (ARTICLE 118) • 3–43–1,

page 410 UNPREMEDITATED MURDER (ARTICLE 118) • 3–43–2,

page 413 MURDER WHILE ENGAGING IN AN ACT INHERENTLY

DANGEROUS TO ANOTHER (ARTICLE 118) • 3–43–3, page 416

FELONY MURDER (ARTICLE 118) • 3–43–4, page 418 VOLUNTARY MANSLAUGHTER (ARTICLE 119) • 3–44–1,

page 420 INVOLUNTARY MANSLAUGHTER—CULPABLE

NEGLIGENCE (ARTICLE 119) • 3–44–2, page 422 INVOLUNTARY MANSLAUGHTER—WHILE PERPETRATING

OR ATTEMPTING TO PERPETRATE CERTAIN OFFENSES (ARTICLE 119) • 3–44–3, page 425

RAPE (ARTICLE 120) • 3–45–1, page 427 CARNAL KNOWLEDGE (ARTICLE 120) • 3–45–2, page 448 LARCENY (ARTICLE 121) • 3–46–1, page 452 WRONGFUL APPROPRIATION (ARTICLE 121) • 3–46–2,

page 464 ROBBERY (ARTICLE 122) • 3–47–1, page 473 FORGERY—MAKING OR ALTERING (ARTICLE 123)

• 3–48–1, page 476 FORGERY—UTTERING (ARTICLE 123) • 3–48–2, page 479 CHECK, WORTHLESS, WITH INTENT TO DEFRAUD

(ARTICLE 123a) • 3–49–1, page 482 CHECK, WORTHLESS, WITH INTENT TO DECEIVE

(ARTICLE 123a) • 3–49–2, page 487 MAIMING (ARTICLE 124) • 3–50–1, page 491 SODOMY—NOT INVOLVING FORCE (ARTICLE 125)

• 3–51–1, page 492 FORCIBLE SODOMY (ARTICLE 125) • 3–51–2, page 494 ARSON—AGGRAVATED—INHABITED DWELLING

(ARTICLE 126) • 3–52–1, page 513 ARSON—AGGRAVATED—STRUCTURE (ARTICLE 126)

• 3–52–2, page 515 ARSON—SIMPLE (ARTICLE 126) • 3–52–3, page 517 EXTORTION (ARTICLE 127) • 3–53–1, page 519 SIMPLE ASSAULT (ARTICLE 128) • 3–54–1, page 521 SIMPLE ASSAULT (WITH AN UNLOADED FIREARM)

(ARTICLE 128) • 3–54–1A, page 523 ASSAULT CONSUMMATED BY A BATTERY (ARTICLE 128)

• 3–54–2, page 526 ASSAULT UPON A COMMISSIONED OFFICER (ARTICLE

128) • 3–54–3, page 527 ASSAULT UPON A WARRANT, NONCOMMISSIONED, OR

PETTY OFFICER (ARTICLE 128) • 3–54–4, page 530

ASSAULT UPON A SENTINEL OR LOOKOUT (ARTICLE 128) • 3–54–5, page 533

ASSAULT UPON A PERSON IN THE EXECUTION OF LAW ENFORCEMENT DUTIES (ARTICLE 128) • 3–54–6, page 536

BATTERY UPON A CHILD UNDER THE AGE OF 16 (ARTICLE 128) • 3–54–7, page 539

AGGRAVATED ASSAULT—DANGEROUS WEAPON, MEANS, OR FORCE (ARTICLE 128) • 3–54–8, page 541

AGGRAVATED ASSAULT--INTENTIONALLY INFLICTING GRIEVOUS BODILY HARM (ARTICLE 128) • 3–54–9, page 546

BURGLARY (ARTICLE 129) • 3–55–1, page 549 HOUSEBREAKING (ARTICLE 130) • 3–56–1, page 551 PERJURY—FALSE TESTIMONY (ARTICLE 131) • 3–57–1,

page 553 PERJURY—SUBSCRIBING FALSE STATEMENT (ARTICLE

131) • 3–57–2, page 556 MAKING FALSE CLAIM (ARTICLE 132) • 3–58–1, page 559 PRESENTING FALSE CLAIM (ARTICLE 132) • 3–58–2,

page 561 MAKING OR USING FALSE WRITING IN CONNECTION

WITH A CLAIM (ARTICLE 132) • 3–58–3, page 563 MAKING FALSE OATH IN CONNECTION WITH A CLAIM

(ARTICLE 132) • 3–58–4, page 565 FORGING OR COUNTERFEITING SIGNATURE IN

CONNECTION WITH A CLAIM (ARTICLE 132) • 3–58–5, page 568

USING FORGED SIGNATURE IN CONNECTION WITH A CLAIM (ARTICLE 132) • 3–58–6, page 569

PAYING AMOUNT LESS THAN CALLED FOR BY RECEIPT (ARTICLE 132) • 3–58–7, page 570

MAKING RECEIPT WITHOUT KNOWLEDGE OF THE FACTS (ARTICLE 132) • 3–58–8, page 572

COPYING OR USING EXAMINATION PAPER (ARTICLE 133) • 3–59–1, page 574

DRUNK OR DISORDERLY (ARTICLE 133) • 3–59–2, page 575 FAILING, DISHONORABLY, TO PAY DEBT (ARTICLE 133)

• 3–59–3, page 577 FAILURE TO KEEP PROMISE TO PAY DEBT (ARTICLE 133)

• 3–59–4, page 579 GENERAL ARTICLE (ARTICLE 134) • 3–60–1, page 581 DISORDERS AND NEGLECTS TO THE PREJUDICE OF

GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES— OFFENSES NOT LISTED IN THE MCM (ARTICLE 134, CLAUSES 1 and 2.) • 3–60–2A, page 582

CRIMES AND OFFENSES NOT CAPITAL—VIOLATIONS OF FEDERAL LAW (ARTICLE 134, CLAUSE 3) • 3–60–2B, page 584

CRIMES AND OFFENSES NOT CAPITAL—VIOLATIONS OF STATE LAW AS VIOLATIONS OF FEDERAL LAW UNDER THE ASSIMILATIVE CRIMES ACT (ARTICLE 134, CLAUSE 3) • 3–60–2C, page 585

UNLAWFULLY TRANSPORTING A VEHICLE OR AIRCRAFT IN INTERSTATE OR FOREIGN COMMERCE (ARTICLE 134) • 3–60–3, page 587

UNCLEAN ACCOUTERMENT, ARMS, OR UNIFORM (ARTICLE 134) • 3–60–4, page 588

UNIFORM—APPEARING IN UNCLEAN OR IMPROPER (ARTICLE 134) • 3–60–5, page 589

ABUSING PUBLIC ANIMAL (ARTICLE 134) • 3–61–1, page 590

ADULTERY (ARTICLE 134) • 3–62–1, page 591 INDECENT ASSAULT (ARTICLE 134) • 3–63–1, page 593 ASSAULT WITH INTENT TO COMMIT CERTAIN OFFENSES

(ARTICLE 134) • 3–64–1, page 596 BIGAMY (ARTICLE 134) • 3–65–1, page 599

DA PAM 27–9 • 15 September 2002 iv


BRIBERY AND GRAFT—ASKING, ACCEPTING, OR RECEIVING (ARTICLE 134) • 3–66–1, page 600

BRIBERY AND GRAFT—PROMISING, OFFERING, OR GIVING (ARTICLE 134) • 3–66–2, page

BURNING WITH INTENT TO DEFRAUD (ARTICLE 134)

602

• 3–67–1, page 604 CHECK—WORTHLESS—MAKING AND UTTERING—BY

DISHONORABLY FAILING TO MAINTAIN SUFFICIENT FUNDS (ARTICLE 134) • 3–68–1, page 606

WRONGFUL COHABITATION (ARTICLE 134) • 3–69–1, page 610

CORRECTIONAL CUSTODY—ESCAPE FROM (ARTICLE 134) • 3–70–1, page 611

CORRECTIONAL CUSTODY—BREACH OF RESTRAINT DURING (ARTICLE 134) • 3–70–2, page 614

DEBT, DISHONORABLY FAILING TO PAY (ARTICLE 134)

• 3–71–1, page 617

DISLOYAL STATEMENTS (ARTICLE 134) • 3–72–1, page 620 DISORDERLY CONDUCT—DRUNKENNESS (ARTICLE 134)

• 3–73–1, page 622 DRINKING LIQUOR WITH PRISONER (ARTICLE 134)

• 3–74–1, page 624 PRISONER FOUND DRUNK (ARTICLE 134) • 3–75–1,

page 625 DRUNKENNESS—INCAPACITATION FOR PERFORMANCE

OF DUTIES THROUGH PRIOR INDULGENCE IN INTOXICATING LIQUORS OR ANY DRUG (ARTICLE 134) • 3–76–1, page 626

FALSE OR UNAUTHORIZED PASS—MAKING, ALTERING, COUNTERFEITING, TAMPERING (ARTICLE 134) • 3–77–1, page 628

FALSE OR UNAUTHORIZED PASS—WRONGFUL SALE, GIFT, OR LOAN (ARTICLE 134) • 3–77–2, page 629

WRONGFUL USE OR POSSESSION OF FALSE OR UNAUTHORIZED PASS (ARTICLE 134) • 3–77–3, page 631

OBTAINING SERVICES UNDER FALSE PRETENSES (ARTICLE 134) • 3–78–1, page 633

FALSE SWEARING (ARTICLE 134) • 3–79–1, page 635 FIREARM—DISCHARGING THROUGH NEGLIGENCE

(ARTICLE 134) • 3–80–1, page 638 FIREARM—WILLFUL DISCHARGE UNDER

CIRCUMSTANCES TO ENDANGER HUMAN LIFE (ARTICLE 134) • 3–81–1, page 639

FLEEING THE SCENE OF AN ACCIDENT—DRIVER OR PASSENGER CHARGED AS A PRINCIPAL (ARTICLE 134) • 3–82–1, page 640

FLEEING THE SCENE OF AN ACCIDENT—SENIOR PASSENGER (ARTICLE 134) • 3–82–2, page 642

FRATERNIZATION (ARTICLE 134) • 3–83–1, page 644 GAMBLING WITH SUBORDINATE (ARTICLE 134) • 3–84–1,

page 646 NEGLIGENT HOMICIDE (ARTICLE 134) • 3–85–1, page 647 IMPERSONATING A COMMISSIONED, WARRANT,

NONCOMMISSIONED, OR PETTY OFFICER OR AGENT OR OFFICIAL (ARTICLE 134) • 3–86–1, page 650

INDECENT ACTS WITH A CHILD—PHYSICAL CONTACT (ARTICLE 134) • 3–87–1, page 653

INDECENT ACTS (LIBERTIES) WITH A CHILD—NO PHYSICAL CONTACT (ARTICLE 134) • 3–87–2, page 655

INDECENT EXPOSURE (ARTICLE 134) • 3–88–1, page 657 INDECENT LANGUAGE COMMUNICATED TO ANOTHER

(ARTICLE 134) • 3–89–1, page 659 INDECENT ACTS WITH ANOTHER (ARTICLE 134) • 3–90–1,

page 661 JUMPING FROM VESSEL INTO THE WATER (ARTICLE 134)

• 3–91–1, page 662 KIDNAPPING (ARTICLE 134) • 3–92–1, page 663 MAIL—TAKING (ARTICLE 134) • 3–93–1, page 665

MAIL—OPENING, SECRETING, OR DESTROYING (ARTICLE 134) • 3–93–2, page 669

MAIL—STEALING (ARTICLE 134) • 3–93–3, page 673 MAIL—DEPOSITING OR CAUSING TO BE DEPOSITED

OBSCENE MATTER IN (ARTICLE 134) • 3–94–1, page 676 MISPRISION OF SERIOUS OFFENSE (ARTICLE 134)

• 3–95–1, page 678 WRONGFUL INTERFERENCE WITH AN ADVERSE

ADMINISTRATIVE PROCEEDING (ARTICLE 134) • 3–96A–1, page 680

OBSTRUCTING JUSTICE (ARTICLE 134) • 3–96–1, page 685 PROSTITUTION (ARTICLE 134) • 3–97–1, page 690 PANDERING BY COMPELLING, INDUCING, ENTICING, OR

PROCURING ACT OF PROSTITUTION (ARTICLE 134) • 3–97–2, page 692

PANDERING BY ARRANGING OR RECEIVING COMPENSATION FOR ARRANGING FOR SEXUAL INTERCOURSE OR SODOMY (ARTICLE 134) • 3–97–3, page 694

PAROLE—VIOLATION OF (ARTICLE 134) • 3–97A–1, page 696

PERJURY—SUBORNATION OF (ARTICLE 134) • 3–98–1, page 698

PUBLIC RECORD—ALTERING, CONCEALING, REMOVING, MUTILATING, OBLITERATING, OR DESTROYING (ARTICLE 134) • 3–99–1, page 702

QUARANTINE—MEDICAL—BREAKING (ARTICLE 134) • 3–100–1, page 704

RECKLESS ENDANGERMENT (ARTICLE 134) • 3–100A–1, page 705

REQUESTING COMMISSION OF AN OFFENSE (ARTICLE 134) • 3–101–1, page 708

RESTRICTION—BREAKING (ARTICLE 134) • 3–102–1, page 709

SEIZURE—DESTRUCTION, REMOVAL, OR DISPOSAL OF PROPERTY TO PREVENT (ARTICLE 134) • 3–103–1, page 711

SELF INJURY WITHOUT INTENT TO AVOID SERVICE (ARTICLE 134) • 3–103A–1, page 713

SENTINEL OR LOOKOUT—DISRESPECT TO (ARTICLE 134)

• 3–104–1, page 715

SENTINEL OR LOOKOUT—LOITERING (ARTICLE 134)

• 3–104–2, page 717

SOLICITING ANOTHER TO COMMIT AN OFFENSE (ARTICLE 134) • 3–105–1, page 719

STOLEN PROPERTY—KNOWINGLY RECEIVING, BUYING, CONCEALING (ARTICLE 134) • 3–106–1, page 722

STRAGGLING (ARTICLE 134) • 3–107–1, page 724 TESTIFY—WRONGFUL REFUSAL (ARTICLE 134) • 3–108–1,

page 725 BOMB THREAT (ARTICLE 134) • 3–109–1, page 728 BOMB HOAX (ARTICLE 134) • 3–109–2, page 730 THREAT—COMMUNICATING (ARTICLE 134) • 3–110–1,

page 732 UNLAWFUL ENTRY (ARTICLE 134) • 3–111–1, page 734 WEAPON—CARRYING CONCEALED (ARTICLE 134)

• 3–112–1, page 735 WEARING UNAUTHORIZED INSIGNIA, DECORATION,

BADGE, RIBBON, DEVICE, OR LAPEL BUTTON (ARTICLE 134) • 3–113–1, page 737

Chapter 4 CONFESSIONS INSTRUCTIONS, page 740 CONFESSIONS AND ADMISSIONS • 4–1, page 740

Chapter 5 SPECIAL AND OTHER DEFENSES, page 744 GENERAL INFORMATION ABOUT INSTRUCTIONS IN THIS

CHAPTER • 5–1, page 744

DA PAM 27–9 • 15 September 2002 v


SELF-DEFENSE GENERALLY AND USING THESE INSTRUCTIONS • 5–2, page 746

HOMICIDE OR ASSAULT AND/OR BATTERY INVOLVING DEADLY FORCE • 5–2–1, page 747

ASSAULT OR ASSAULT AND BATTERY INVOLVING OTHER THAN DEADLY FORCE • 5–2–2, page 749

HOMICIDE OR AGGRAVATED ASSAULT WITH ASSAULT CONSUMMATED BY A BATTERY OR ASSAULT AS A LESSER INCLUDED OFFENSE • 5–2–3, page 751

DEATH OF VICTIM UNINTENDED—DEADLY FORCE NOT AUTHORIZED (SELF-DEFENSE) • 5–2–4, page 754

EXCESSIVE FORCE TO DETER (SELF-DEFENSE) • 5–2–5, page 757

OTHER INSTRUCTIONS (SELF-DEFENSE) • 5–2–6, page 759 DEFENSE OF ANOTHER (HOMICIDE OR AGGRAVATED

ASSAULT CHARGED; NO LESSER ASSAULTS IN ISSUE) • 5–3–1, page 762

DEFENSE OF ANOTHER (ASSAULT OR ASSAULT AND BATTERY CHARGED) • 5–3–2, page 764

DEFENSE OF ANOTHER (HOMICIDE OR AGGRAVATED ASSAULT CHARGED AND A LESSER ASSAULT RAISED AS A LESSER INCLUDED OFFENSE) • 5–3–3, page 766

ACCIDENT • 5–4, page 769 DURESS (COMPULSION OR COERCION) • 5–5, page 773 ENTRAPMENT • 5–6, page 775 DEFENSE OF PROPERTY • 5–7, page 778 OBEDIENCE TO ORDERS—UNLAWFUL ORDER • 5–8–1,

page 780 OBEDIENCE TO ORDERS—LAWFUL ORDER • 5–8–2,

page 782 PHYSICAL IMPOSSIBILITY • 5–9–1, page 783 PHYSICAL INABILITY • 5–9–2, page 784 FINANCIAL AND OTHER INABILITY • 5–10, page 785 IGNORANCE OR MISTAKE OF FACT OR LAW—GENERAL

DISCUSSION • 5–11, page 786 IGNORANCE OR MISTAKE—WHERE SPECIFIC INTENT OR

ACTUAL KNOWLEDGE IS IN ISSUE • 5–11–1, page 787 IGNORANCE OR MISTAKE—WHEN ONLY GENERAL

INTENT IS IN ISSUE • 5–11–2, page 788 IGNORANCE OR MISTAKE—CHECK OFFENSES UNDER

ARTICLE 134 • 5–11–3, page 790 IGNORANCE OR MISTAKE—DRUG OFFENSES • 5–11–4,

page 792 VOLUNTARY INTOXICATION • 5–12, page 794 ALIBI • 5–13, page 796 CHARACTER • 5–14, page 797 VOLUNTARY ABANDONMENT • 5–15, page 798 PARENTAL DISCIPLINE • 5–16, page 800 EVIDENCE NEGATING MENS REA • 5–17, page 802 CLAIM OF RIGHT • 5–18, page 806 LACK OF CAUSATION, INTERVENING CAUSE, OR

CONTRIBUTORY NEGLIGENCE • 5–19, page 810

Chapter 6 MENTAL CAPACITY AND RESPONSIBILITY, page 816 SANITY INQUIRY • 6–1, page 816 MENTAL CAPACITY AT TIME OF TRIAL • 6–2, page 817 PRELIMINARY INSTRUCTIONS ON SANITY • 6–3, page 818 MENTAL RESPONSIBILITY AT TIME OF OFFENSE • 6–4,

page 819 PARTIAL MENTAL RESPONSIBILITY • 6–5, page 822 EVALUATION OF TESTIMONY • 6–6, page 824 PROCEDURAL INSTRUCTIONS ON FINDINGS (MENTAL

RESPONSIBILITY AT ISSUE) • 6–7, page 826 RECONSIDERATION INSTRUCTIONS (FINDINGS—MENTAL

RESPONSIBILITY AT ISSUE) • 6–8, page 831 SENTENCING FACTORS • 6–9, page 834

Chapter 7 EVIDENTIARY INSTRUCTIONS, page 836 VICARIOUS LIABILITY—PRINCIPALS AND CO

CONSPIRATOR • 7–1, page 836 PRINCIPALS—AIDING AND ABETTING • 7–1–1, page 838 PRINCIPALS—COUNSELING, COMMANDING, OR

PROCURING • 7–1–2, page 840 PRINCIPALS—CAUSING AN ACT TO BE DONE • 7–1–3,

page 841 VICARIOUS LIABILITY—CO-CONSPIRATORS • 7–1–4,

page 842 JOINT OFFENDERS • 7–2, page 845 CIRCUMSTANTIAL EVIDENCE • 7–3, page 847 STIPULATIONS OF FACT • 7–4–1, page 849 STIPULATIONS OF EXPECTED TESTIMONY • 7–4–2,

page 850 DEPOSITIONS • 7–5, page 851 JUDICIAL NOTICE • 7–6, page 852 CREDIBILITY OF WITNESSES • 7–7–1, page 853 EYEWITNESS IDENTIFICATION AND INTERRACIAL

IDENTIFICATION • 7–7–2, page 854 CHARACTER—GOOD—OF ACCUSED TO SHOW

PROBABILITY OF INNOCENCE • 7–8–1, page 857 CHARACTER—VICTIM—VIOLENCE OR PEACEABLENESS

• 7–8–2, page 858 CHARACTER FOR UNTRUTHFULNESS • 7–8–3, page 859 EXPERT TESTIMONY • 7–9–1, page 860 POLYGRAPH EXPERT • 7–9–2, page 863 ACCOMPLICE TESTIMONY • 7–10, page 865 PRIOR INCONSISTENT STATEMENT • 7–11–1, page 867 PRIOR CONSISTENT STATEMENT—RECENT FABRICATION

• 7–11–2, page 868 ACCUSED’S FAILURE TO TESTIFY • 7–12, page 869 OTHER CRIMES, WRONGS, OR ACTS EVIDENCE • 7–13–1,

page 870 PRIOR CONVICTION TO IMPEACH • 7–13–2, page 872 PAST SEXUAL BEHAVIOR OF NONCONSENSUAL SEX

VICTIM • 7–14, page 873 VARIANCE—FINDINGS BY EXCEPTIONS AND

SUBSTITUTIONS • 7–15, page 874 VALUE, DAMAGE OR AMOUNT—VARIANCE • 7–16,

page 875 “SPILL-OVER”—FACTS OF ONE CHARGED OFFENSE TO

PROVE ANOTHER • 7–17, page 877 “HAVE YOU HEARD” QUESTIONS TO IMPEACH OPINION

• 7–18, page 879 WITNESS TESTIFYING UNDER A GRANT OF IMMUNITY

OR PROMISE OF LENIENCY • 7–19, page 881 CHAIN OF CUSTODY • 7–20, page 883 PRIVILEGE • 7–21, page 884 FALSE EXCULPATORY STATEMENTS • 7–22, page 885 “CLOSED TRIAL SESSION,” IMPERMISSIBLE INFERENCE

OF GUILT • 7–23, page 887 BRAIN DEATH • 7–24, page 890

Chapter 8 TRIAL PROCEDURE AND INSTRUCTIONS FOR A CAPITAL

CASE, page 892

Section I Initial Session Through Arraignment, page 892 PROCEDURAL GUIDE FOR ARTICLE 39(A) SESSION • 8–1,

page 892 RIGHTS TO COUNSEL • 8–1–1, page 893 FORUM RIGHTS • 8–1–2, page 895 ARRAIGNMENT • 8–1–3, page 897

Section II Guilty Plea Inquiry, page 898

DA PAM 27–9 • 15 September 2002 vi


GUILTY PLEA INTRODUCTION • 8–2–1, page 898 STIPULATION OF FACT INQUIRY • 8–2–2, page 899 GUILTY PLEA FACTUAL BASIS • 8–2–3, page 901 MAXIMUM PUNISHMENT INQUIRY • 8–2–4, page 902 PRETRIAL AGREEMENT • 8–2–5, page 903 IF NO PRETRIAL AGREEMENT EXISTS • 8–2–6, page 905 ACCEPTANCE OF GUILTY PLEA • 8–2–7, page 905

Section III Court Members (Contested), page 907 PRELIMINARY INSTRUCTIONS • 8–3, page 907 VOIR DIRE • 8–3–1, page 914 CHALLENGES • 8–3–2, page 919 ANNOUNCEMENT OF PLEA • 8–3–3, page 920 TRIAL ON MERITS • 8–3–4, page 921 TRIAL RESUMES WITH DEFENSE CASE, IF ANY • 8–3–5,

page 921 REBUTTAL AND SURREBUTTAL, IF ANY • 8–3–6, page 922 DISCUSSION OF FINDINGS INSTRUCTIONS • 8–3–7,

page 922 PREFATORY INSTRUCTIONS ON FINDINGS • 8–3–8,

page 923 LESSER-INCLUDED OFFENSE(S) • 8–3–9, page 924 OTHER APPROPRIATE INSTRUCTIONS • 8–3–10, page 925 CLOSING SUBSTANTIVE INSTRUCTIONS ON FINDINGS

• 8–3–11, page 925 FINDINGS ARGUMENT • 8–3–12, page 926 PROCEDURAL INSTRUCTIONS ON FINDINGS • 8–3–13,

page 927 PRESENTENCING SESSION • 8–3–14, page 931 FINDINGS • 8–3–15, page 932 SENTENCING PROCEEDINGS • 8–3–16, page 933 REBUTTAL AND SURREBUTTAL, IF ANY • 8–3–17,

page 934 DISCUSSION OF SENTENCING INSTRUCTIONS • 8–3–18,

page 934 SENTENCING ARGUMENTS • 8–3–19, page 935 SENTENCING INSTRUCTIONS • 8–3–20, page 935 MAXIMUM PUNISHMENT • 8–3–21, page 936 TYPES OF PUNISHMENT • 8–3–22, page 937 PUNITIVE DISCHARGE • 8–3–23, page 937 DISHONORABLE DISCHARGE • 8–3–24, page 938 BAD CONDUCT DISCHARGE • 8–3–25, page 938 DISMISSAL • 8–3–26, page 938 FORFEITURES OF ALL PAY AND ALLOWANCES • 8–3–27,

page 938 EFFECT OF ARTICLE 58b IN GCM • 8–3–28, page 939 PRETRIAL CONFINEMENT CREDIT (IF APPLICABLE)

• 8–3–29, page 939 CONFINEMENT • 8–3–30, page 940 REDUCTION • 8–3–31, page 940 EFFECT OF ARTICLE 58a - U.S. ARMY • 8–3–32, page 941 DEATH • 8–3–33, page 941 CLEMENCY (RECOMMENDATION FOR SUSPENSION)

• 8–3–34, page 941 PLEA OF GUILTY • 8–3–35, page 942 ACCUSED’S NOT TESTIFYING • 8–3–36, page 942 ACCUSED’S NOT TESTIFYING UNDER OATH • 8–3–37,

page 942 MENDACITY • 8–3–38, page 942 ARGUMENT FOR A SPECIFIC SENTENCE • 8–3–39, page 943 CONCLUDING SENTENCING INSTRUCTIONS • 8–3–40,

page 943 ANNOUNCEMENT OF SENTENCE • 8–3–41, page 952 PRETRIAL CONFINEMENT CREDIT • 8–3–42, page 953 POST-TRIAL and APPELLATE RIGHTS ADVICE • 8–3–43,

page 953

IF MORE THAN ONE DEFENSE COUNSEL • 8–3–44, page 953

Appendixes

A. References, page 955

B. Findings Worksheets, page 955

C. Sentence Worksheets, page 964

D. Rehearings, New or Other Trials and Revision Procedure, page 972

E. Contempt Procedure, page 977

F. Procedure For Trials of Persons Protected by the Geneva Convention (GPW), page 983

G. General and Special Findings, page 987

H. Rules of Practice Before Army Courts-Martial, page 994

I. Form for Certificate of Correction of Record of Trial, page 995

J. Instructions Checklists, page 996

K. DuBay Hearing Procedure, page 1004

Table List

Table 2–1: Votes Needed for a Finding of Guilty, page 54 Table 2–2: Votes Needed for Sentencing, page 72 Table 2–3: Votes Needed for Sentencing, page 103 Table 2–4: Votes Needed for Reconsideration of Findings,

page 130 Table 2–5: Votes Needed for Reconsideration of Sentence,

page 136 Table 2–6: Table of Equivalent Punishments, page 140 Table 2–7: Table of Equivalent Nonjudicial Punishments, page 140 Table 6–1: Votes Needed for a Finding of Guilty (Mental

Responsibility), page 827 Table 6–2: Votes Needed for Mental Responsibility, page 828 Table 6–3: Votes Needed for Reconsideration of Findings,

page 831 Table 8–1: Votes Needed for a Finding of Guilty, page 927 Table B–1: Sample Findings Worksheet—No Lesser Included

Offenses, page 956 Table B–2: Sample Findings Worksheet—Lesser Included

Offenses, page 957 Table B–3: Sample Findings Worksheet—Capital Cases, page 958 Table B–4: Sample Findings Worksheet—Exceptions and

Substitutions, page 960 Table B–5: Sample Alternative Findings Worksheet, page 962 Table C–1: Sample Sentence Worksheet—Special Court-Martial

Not Authorized to Adjudge a Bad Conduct Discharge, page 965 Table C–2: Sample Sentence Worksheet—Special Court-Martial

Authorized to Adjudge a Bad Conduct Discharge, page 966 Table C–3: Sample Sentence Worksheet—General Court-Martial

(Non-Capital), page 967 Table C–4: Sample Sentence Worksheet—General Court-Martial

(Capital Case), page 968 Table G–1: Sample Letter—Special Findings, page 989 Table G–2: Sample Letter—Essential Findings of Fact, page 990 Table I–1: Sample Letter—Certificate of Correction, page 995

Glossary

Index

DA PAM 27–9 • 15 September 2002 vii

RESERVED

DA PAM 27–9 • 15 September 2002 viii

Chapter 1 INTRODUCTION

DA PAM 27–9 • 15 September 2002 1

1–1. Purpose and scope.

a. Obligations, duties, and essential characteristics of military judges. Although the primary thrust of this benchbook is to assist military judges in preparation of trial instructions, military judges must constantly be mindful of their judicial responsibilities in and out of the courtroom. In this regard, additional guidance may be found in publications of such organizations as the American Bar Association, American Judicature Society, and National Conference of State Trial Judges. Particular attention should be given to the Code of Judicial Conduct and Standards for the Administration of Criminal Justice pertaining to the Special Functions of the Trial Judge as promulgated by The American Bar Association.

(1) General obligations.

(a) A military judge must maintain a thorough knowledge of military law, including all its latest developments, by careful analysis of the decisions of military appellate tribunals, the United States Court of Appeals for the Armed Forces, and pertinent decisions of other federal courts.

(b) A military judge must administer justice fairly and promptly, and in a simple, uniform, and efficient manner. All judges should retain a flexible trial docket to avoid unnecessary delays in the scheduling and conduct of trials. Whenever practicable and consistent with each accused’s right to a speedy trial, judges should endeavor to conduct trials consecutively during specified periods and at specified locations.

(c) A military judge has responsibilities beyond deciding cases. The judge should provide statistical records of the activities of the court at regular intervals. In addition, the judge should conduct formal or informal training sessions for counsel to improve the quality of military justice.

(d) A military judge should analyze problems arising in court and, if appropriate, should recommend legislative and other changes that will improve the administration and cause of justice.

(e) Judges should participate in judicial associations and confer with other judges, particularly with those having similar jurisdiction, to increase their competence.

(2) General duties during trials.

(a) A military judge must administer justice and faithfully, impartially, and independently perform all duties to the best of the judge’s ability and understanding in accordance with the law, the evidence admitted in court, and the judge’s own conscience.

(b) The judge should seek a full understanding of the factual issues and the applicable law. The judge should generally hear the arguments of counsel regarding interlocutory matters and the admissibility of evidence out of the hearing of the court members.

(c) A military judge is not merely an umpire between counsel. As a representative of justice, the judge is sworn to uphold the law and to ensure that justice is done. The judge should maintain the dignity of trial proceedings and preside with independence and impartiality. However, the judge should not unnecessarily interfere with or interrupt counsel.

(d) A military judge should refrain from displays of temper, personal pique, or manifestations of idiosyncrasies. The judge should avoid comment, conduct, or appearance that may unfairly influence court members or affect their judgment on the outcome of the case. The judge must endeavor to show restraint and understanding and to curb any tendency toward arbitrary or sarcastic remarks, bearing in mind that every word spoken during trial is not merely momentarily audible but is permanently recorded. The judge


should therefore insure that all statements are uttered with due regard not only for the immediate impact upon those present, but upon all those who may subsequently examine the record in close detail.

(e) While proceedings must never be unduly protracted by an excessive display of legal acumen, or other unnecessary verbiage, they must also never be unnecessarily abbreviated by a natural reluctance to avoid repetition in similar but different cases. Through maximum use of the Military Judges’ Benchbook and other aids, the judge must always skillfully maintain a prudent balance in this regard.

(f) When delivering instructions, the military judge should speak in a conversational voice, using language that is clear, simple, and understandable. The judge should avoid any inflection, act, or demeanor that suggests a personal opinion, or conveys a meaning that is not expressed in the language employed.

(3) Essential characteristics.

(a) Judicial office imposes great moral responsibilities. However, the mantle of responsibility which goes with the judge does not mean the judge must be aloof to human relations. The judge’s individual character, warmth, and human qualities should not be adversely affected by judicial status but should be developed fully as necessary ingredients of a proper judicial temperament. A military judge must have a deep sense of justice and an abiding faith in the law. The judge must possess honesty and courage; wisdom a n d l e a r n i n g ; c o u r t e s y a n d p a t i e n c e ; t h o r o u g h n e s s a n d d e c i s i v e n e s s ; u n d e r s t a n d i n g a n d s o c i a l consciousness; and independence and impartiality.

(b) “The Kind of Judges We Need.” One of the best descriptions of the kind of judges we need is contained in a statement by the late Chief Justice Arthur T. Vanderbilt of New Jersey, who devoted nearly all of his life to the promotion of programs to improve the administration of civilian and military justice: “We need judges learned in the law, not merely the law in books but, something far more difficult to acquire, the law as applied in action in the courtroom; judges deeply versed in the mysteries of human nature and adept in the discovery of the truth in the discordant testimony of fallible human beings; judges beholden to no man, independent and honest—equally important —believed by all men to be independent and honest; judges above all, fired with consuming zeal to mete out justice according to law to every man, woman, and child that may come before them and to preserve individual freedom against any aggression of government; judges with the humility born of wisdom, patient and untiring in the search for truth, and keenly conscious of the evils arising in a workaday world from any unnecessary delay. Judges with all of these attributes are not easy to find, but which of these traits dare we eliminate if we are to hope for evenhanded justice? Such ideal judges can after a fashion make even an inadequate system of substantive law achieve justice; on the other hand, judges who lack these qualifications will defeat the best system of substantive and procedural law imaginable.”

b. Primary objective. This benchbook is primarily designed to assist military judges of courts-martial in the drafting of necessary instructions to courts. Since instructional requirements vary in each case, the pattern instructions are intended only as guides from which the actual instructions are to be drafted. In addition, this publication is designed to suggest workable solutions for many specific problems which may arise at a trial and to guide the military judge past certain pitfalls which might otherwise result in error. Specific examples of situations with which the military judge may have to deal are set forth, and in many instances actual language which may be employed in meeting these situations suggested.

1–2. Necessity for tailoring.

No standardized set of instructions can cover every situation arising in a trial by court-martial. Special circumstances will invariably be presented, requiring instructions not dealt with in this benchbook, or adaptation of one or more of these instructions to the facts of a case. These instructions are not intended to


be a substitute for the ingenuity, resourcefulness, and research skill of the military judge. They will be of maximum value when used as a guide to carefully tailored instructions to be given to court members. The tailoring of instructions to the particular facts of a case contemplates the affirmative submission of the respective theories, both of the Government and of the accused, to the members of courts, with lucid guideposts, to the end that they may knowledgeably apply the law to the facts as they find them.

1–3. Elements of offenses.

a. Each pattern instruction contained in Chapter 3 bears the same number as the corresponding paragraph in Chapter 4 of the Manual for Courts-Martial, United States, 2000 Edition. For example, regarding larceny, paragraph 46, MCM, the pattern instruction is numbered 3–46–1. The instruction for the lesser included offense of wrongful appropriation, also contained in paragraph 46, is Instruction 3–46–2. For most punitive offenses, if there are two or more methods by which the punitive article can be violated, the instructions are set forth separately, and are numbered with a –2, –3, –4, and so forth. Each instruction includes the maximum punishment; the form specification, which may be slightly different from the MCM form specification; the elements of the offense; definitions of terms; and required or desirable supplementary instructions. If an instruction includes a term having a special legal connotation (term of art), the term should be defined for the benefit of the court, and ordinarily appears in the “DEFINITIONS AND OTHER INSTRUCTIONS” section of each instruction. Each pattern instruction set out in Chapter 3 should be prefaced by the language found in Chapters 2 (2–5–9) or 8 (8–3–8), PREFATORY INSTRUCTIONS ON FINDINGS. In the body of the instructions, that is, the elements and definitions sections, language found in parentheses is ordinarily not required in each case, but may be in a particular case, depending on the pleadings, the facts, and the contentions of the parties. Language set forth in brackets denotes elements which are alternative means of committing an offense, or aggravating factors which are not required to be instructed upon in each case, unless pled in the specification. For example, Article 123 may be violated by forging a document or uttering a forged document; thus, the form specification and elements for forgery are found in one set of brackets, and those for uttering are set forth in a second set of brackets.

b. Notes are used extensively throughout the instructions in Chapter 3. When an instruction follows a note in the “DEFINITIONS AND OTHER INSTRUCTIONS” section, that instruction should be given only if the subject matter of the note applies to the facts and circumstances of that case. Notes in other portions of Chapter 3 are intended to explain the applicability of the instruction generally, or to alert the trial judge to optional elements or unusual applications of the instruction.

1–4. Other Instructions.

a. When court members are to determine findings in a case involving a plea of not guilty, the military judge should instruct as to the elements of each offense charged and all lesser included offenses, any special or other defense in issue, and other supplementary matters, bearing in mind the need for tailoring such instructions to the facts of the case. These instructions should conclude with mandatory advice concerning the burden of proof, reasonable doubt, and presumption of innocence, and guidance concerning procedures to follow in deliberations and voting in closed session found in Chapter 2. When court members are to determine a sentence, instructions must be tailored to the law and evidence just as in the case of pre-findings advice.

b. Instructions in Chapter 5 cover general and special defenses, and Chapter 7 includes common evidentiary instructions. As in Chapter 3, instructional language which follows a note is to be given only when the note applies to the facts and circumstances of the offense.


1–5. References.

Paragraph numbers in chapter 3 conform to the paragraph numbers in the MCM. Therefore, no MCM citations are listed at paragraph e, “Reference.” Absent other citations, paragraph e is omitted.


RESERVED


Chapter 2 TRIAL PROCEDURE AND INSTRUCTIONS


This procedural guide modifies the Guide for General and Special Courts-Martial in Appendix 8, Manual for Courts-Martial, 2000. This guide is intended for use in any case to which a military judge (MJ) has been detailed. In addition to serving as a procedural guide for contested and uncontested trials, this chapter provides the majority of standard, nonevidentiary instructions on findings and sentencing. The order in which the guide and instructions appear generally corresponds with the point in the trial when the particular wording or instruction is needed or is otherwise appropriate.

Section I Initial Session Through Arraignment

2–1. PROCEDURAL GUIDE FOR ARTICLE 39(A) SESSION

MJ: Please be seated. This Article 39(a) session is called to order. TC: This court-martial is convened by court-martial convening order No. ______, HQ, ___________, dated ______ (as amended by CMCO No. ______, same Headquarters, dated ______) copies of which have been furnished the military judge, counsel, and the accused, and which will be inserted at this point in the record.

NOTE: The MJ should examine the convening order(s) and any amendments for accuracy. IF A CAPITAL CASE, go to Chapter 8.

(TC: The following corrections are noted in the convening orders: ___________.)

NOTE: Only minor changes may be made at trial to the convening orders. Any correction that affects the identity of the individual concerned must be made by an amending or correcting order.

TC: The charges have been properly referred to this court for trial and were served on the accused on ______. The prosecution is ready to proceed (with the arraignment) in the case of United States v. .

NOTE: The MJ must pay attention to the date of service. In peacetime, if less than three days (SPCM) or 5 days (GCM) have elapsed from the date of service, the MJ must inquire. If the accused objects, the MJ must grant a continuance. (When computing the days, do not count the day of service or day of trial.) If a waiver must be obtained, a suggested guide can be found at 2-7-1, WAIVER OF STATUTORY WAITING PERIOD.

TC: The accused and the following persons detailed to this court are present: ___________, military judge; ___________, trial counsel; and ___________, defense counsel. The members (and the following persons detailed to this court) are absent: ___________.

TC: ___________ has been detailed reporter for this court and (has been previously sworn) (will now be sworn).

NOTE: When detailed, the reporter is responsible for recording the proceedings, for accounting for the parties to the trial, and for keeping a record of the hour and date of each opening and closing of each session whether a recess, adjournment, or otherwise, for insertion in the record.


Ch 2, §I, para 2-1-1

TC: (I) (All members of the prosecution) have been detailed to this court-martial by ___________. (I am) (All members of the prosecution are) qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code of Military Justice. (I have not) (No member of the prosecution has) acted in any manner which might tend to disqualify (me) (us) in this court-martial.

NOTE: Oaths for counsel. When counsel for either side, including any associate or a s s i s t a n t , i s n o t p r e v i o u s l y s w o r n , t h e f o l l o w i n g o a t h , a s a p p r o p r i a t e , w i l l b e administered by the MJ:

“Do you (swear) (affirm) that you will faithfully perform all the d u t i e s o f ( t r i a l ) ( a s s i s t a n t t r i a l ) ( d e f e n s e ) ( a s s o c i a t e d e f e n s e ) (assistant defense) counsel in the case now in hearing (so help you God)?”

2–1–1. RIGHTS TO COUNSEL

MJ: ___________, you have the right to be represented by ___________, your detailed military

defense counsel. (He) (She) is provided to you at no expense to you.

You also have the right to request a different military lawyer to represent you. If the person you

request is reasonably available, he or she would be appointed to represent you free of charge.

If your request for this other military lawyer were granted, however, you would not have the right to

keep the services of your detailed defense counsel because you are entitled only to one military

lawyer. You may ask (his) (her) superiors to let you keep your detailed counsel, but your request

would not have to be granted.

In addition, you have the right to be represented by a civilian lawyer. A civilian lawyer would have

to be provided by you at no expense to the government.

If you are represented by a civilian lawyer, you can also keep your military lawyer on the case to

assist your civilian lawyer, or you could excuse your military lawyer and be represented only by your

civilian lawyer. Do you understand that? ACC: (Responds.)

MJ: Do you have any questions about your rights to counsel? ACC: (Responds.)

MJ: By whom do you wish to be represented? ACC: (Responds.)

MJ: And by (him) (her) (them) alone? ACC: (Responds.)


Ch 2, §I, para 2-1-2

NOTE: If the accused elects pro se representation, see applicable inquiry at 2-7-2, PRO SE REPRESENTATION. The MJ must be aware of any possible conflict of interest by counsel and, if a conflict exists, the MJ must obtain a waiver from the accused or order new counsel appointed for the accused. See applicable inquiry at 27-3, WAIVER OF CONFLICT-FREE COUNSEL.

MJ: Defense counsel will announce by whom (he) (she) (they) (was) (were) detailed and (his) (her)

(their) qualifications. DC: (I) (All detailed members of the defense) have been detailed to this court-martial by ___________. (I am) (All detailed members of the defense are) qualified and certified under Article 27(b) and sworn under Article 42(a), Uniform Code of Military Justice. (I have not) (No member of the defense has) acted in any manner which might tend to disqualify (me) (us) in this court-martial.

Civilian DC: I am an attorney and licensed to practice law in the state(s) of ___________. I am a member in good standing of the (___________) bar(s). I have not acted in any manner which might tend to disqualify me in this court-martial.

(OATH FOR CIVILIAN COUNSEL:) MJ: Do you, ___________, (swear) (affirm) that you will faithfully perform the duties of individual defense counsel in the case now in hearing (so help you God)?

MJ: I have been properly certified and sworn, and detailed (myself) (by _________________) to this

court-martial. Counsel for both sides appear to have the requisite qualifications, and all personnel

required to be sworn have been sworn. Trial counsel will announce the general nature of the

charge(s). TC: The general nature of the charge(s) in this case is ___________. The charge(s) (was) (were) preferred b y _ _ _ _ _ _ _ _ _ _ _ , ( a n d ) f o r w a r d e d w i t h r e c o m m e n d a t i o n s a s t o d i s p o s i t i o n b y _ _ _ _ _ _ _ _ _ _ _ ; ( a n d investigated by ___________). (The Article 32 investigation was waived.)

NOTE: If the accused waived the Article 32 investigation, the MJ should inquire to ensure that it was a knowing and voluntary waiver. The script at 2-7-8, PRETRIAL AGREEMENT: ARTICLE 32 WAIVER may be used, but, if the waiver was not IAW a pretrial agreement the first sentence of the first question should be omitted. If the w a i v e r w a s p a r t o f a p r e t r i a l a g r e e m e n t , t h e M J c a n d e f e r t h i s i n q u i r y u n t i l discussion of the pretrial agreement, para 2-2-6.

TC: Your honor, are you aware of any matter which might be a ground for challenge against you?

MJ: (I am not.) (___________.) Does either side desire to question or to challenge me? TC/DC: (Responds.)

2–1–2. FORUM RIGHTS

MJ: ___________, you have a right to be tried by a court consisting of at least (three) (five) officer

members (that is, a court composed of commissioned and/or warrant officers).


Ch 2, §I, para 2-1-2

(IF ACCUSED IS ENLISTED:) MJ: Also, if you request it, you would be tried by a court consisting

of at least one-third enlisted members, but none of those enlisted members could come from your

(company) (battery) (troop) (detachment).

MJ: You are also advised that no member of the court would be junior in rank to you. Do you

understand what I have said so far? ACC: (Responds.)

MJ: Now, if you are tried by court members, the members will vote by secret, written ballot and two-

thirds of the members must agree before you could be found guilty of any offense.

If you were found guilty, then two-thirds must also agree in voting on a sentence (and if that sentence

included confinement for more than 10 years, then three-fourths would have to agree).

NOTE: IF CAPITAL CASE, use procedural guide in chapter 8. In capital cases there is no right to request trial by judge alone.

(IN NON-CAPITAL CASES:) MJ: You also have the right to request a trial by military judge alone,

and if approved there will be no court members and the judge alone will decide whether you are

guilty or not guilty, and if found guilty, the judge alone will determine your sentence. Do you

understand the difference between trial before members and trial before military judge alone? ACC: (Responds.)

MJ: Do you understand the choices that you have? ACC: (Responds.)

MJ: By what type of court do you wish to be tried? ACC: (Responds.)

NOTE: If accused elects enlisted court members and the request is written, mark it as a n a p p e l l a t e e x h i b i t . P r o c e e d t o a r r a i g n m e n t , 2 - 1 - 3 . I f a c c u s e d e l e c t s o f f i c e r members: Proceed to arraignment, 2-1-3. If accused elects trial by judge alone, continue below:

MJ: Is there a written request for trial by military judge alone? DC: There is (not).


Ch 2, §I, para 2-1-2

MJ: Does the accused have a copy in front of him? DC: (Responds.)

MJ: ___________, Appellate Exhibit ___, is a request for trial by military judge alone. Is this your

signature on this exhibit? ACC: (Responds.)

MJ: At the time you signed this request, did you know I would be the military judge in your case? ACC: (Responds.)

MJ: Is your request a voluntary one? By that, I mean are you making this request of your own free

will? ACC: (Responds.)

MJ: If I approve your request for trial by me alone, you give up your right to be tried by a court

composed of members. Do you understand that? ACC: (Responds.)

MJ: Do you still wish to be tried by me alone? ACC: (Responds.)

MJ: Your request is approved. (MJ should indicate so by signing and dating the written request, if

one exists.)

N O T E : I f t h e M J d i s a p p r o v e s t h e r e q u e s t , t h e M J s h o u l d d e v e l o p t h e f a c t s s u r r o u n d i n g t h e d e n i a l , r e q u i r e a r g u m e n t f r o m c o u n s e l , a n d s t a t e r e a s o n s f o r denying the request.

MJ: The court is assembled.


Ch 2, §I, para 2-1-3

2–1–3. ARRAIGNMENT

MJ: The accused will now be arraigned. TC: All parties to the trial have been furnished with a copy of the charges. Does the accused want them read?

DC: The accused (waives the reading of the charges) (wants the charges read).

MJ: (The reading may be omitted.) (Trial counsel will read the charges.) TC: The charge(s) (is) (are) signed by ___________, a person subject to the code, as accuser; (is) (are) properly sworn to before a commissioned officer of the armed forces authorized to administer oaths; and (is) (are) properly referred to this court for trial by ___________, the convening authority.

MJ: Accused and defense counsel please rise. (PVT) (___) ___________, how do you plead? Before

receiving your plea, I advise you that any motions to dismiss or to grant other appropriate relief

should be made at this time. Your defense counsel will speak for you. DC: The defense (has (no) (the following) motions.) (requests to defer motions at this time.)

NOTE: Whenever factual issues are involved in ruling on a motion, the MJ shall state essential findings of fact. If the trial counsel gives notice that the Government desires a continuance to file an appeal under Article 62 (see RCM 908), the MJ should note the time on the record so that the 72 hour period may be accurately calculated.

The accused, ___________, pleads as follows:

NOTE: The MJ must ensure that pleas are entered after all motions are litigated. IF GUILTY PLEA; go to 2-2-1. IF NOT GUILTY (JUDGE ALONE), go to section III. IF NOT GUILTY (MEMBERS), mark the Flyer as an Appellate Exhibit; ensure each court member packet contains copies of the flyer, convening orders, note paper, and witness question forms; then go to section V.


Ch 2, §II

Section II Guilty Plea Inquiry

2–2–1. GUILTY PLEA INTRODUCTION

MJ: ___________, your counsel has entered a plea of guilty for you to ((the) (all) (several) charge(s)

and specification(s)) (___________.) Your plea of guilty will not be accepted unless you understand its

meaning and effect. I am going to discuss your plea of guilty with you. You may wish to consult with

your defense counsel prior to answering any of my questions. If at any time you have questions feel

free to ask them.

A plea of guilty is equivalent to a conviction and is the strongest form of proof known to the law. On

your plea alone, and without receiving any evidence, this court can find you guilty of the offense(s) to

which you have pled guilty. Your plea will not be accepted unless you realize that by your plea you

admit every act or omission, and element of the offense(s) to which you have pled guilty, and that you

are pleading guilty because you actually are, in fact, guilty. If you do not believe that you are guilty,

then you should not for any reason plead guilty. Do you understand what I have said so far? ACC: (Responds.)

MJ: By your plea of guilty you give up three important rights (but you give up these rights solely

with respect to the offenses to which you have pled guilty).

First, the right against self-incrimination, that is, the right to say nothing at all.

Second, the right to a trial of the facts by this court, that is, your right to have this court-martial

decide whether or not you are guilty based upon evidence the prosecution would present, and on any

evidence you may introduce.

Third, the right to be confronted by and to cross-examine any witness called against you.

Do you have any questions about any of these rights? ACC: (Responds.)


Ch 2, §II, para 2-2-1

MJ: Do you understand that by pleading guilty you no longer have these rights? ACC: (Responds.)

MJ: If you continue with your guilty plea, you will be placed under oath and I will question you to

determine whether you are, in fact, guilty. Anything you tell me may be used against you in the

sentencing portion of the trial. Do you understand this? ACC: (Responds.)

MJ: If you tell me anything that is untrue, your statements may be used against you later for charges

of perjury or making false statements. Do you understand this? ACC: (Responds.)

(MJ: Your plea of guilty to a lesser included offense may also be used to establish certain elements of

the charged offense, if the government decides to proceed on the charged offense. Do you understand

this?) ACC: (Responds.)

MJ: Trial counsel, please place the accused under oath. TC: ___________, please stand and face me. Do you (swear) (affirm) that the statements you are about to make shall be the truth, the whole truth, and nothing but the truth (so help you God)?

ACC: (Responds.)

MJ: Is there a stipulation of fact? TC: (Yes) (No), Your honor.

NOTE: If no stipulation exists, go to 2-2-3, GUILTY PLEA FACTUAL BASIS. If a stipulation exists, continue below.


Ch 2, §II, para 2-2-2

2–2–2. STIPULATION OF FACT INQUIRY

MJ: Please have the stipulation marked as a Prosecution Exhibit, present it to me, and make sure the

accused has a copy.

MJ: ___________, I have before me Prosecution Exhibit ___ for Identification, a stipulation of fact.

Did you sign this stipulation? ACC: (Responds.)

MJ: Did you read this document thoroughly before you signed it? ACC: (Responds.)

MJ: Do both counsel agree to the stipulation and that your signatures appear on the document? TC/DC: (Responds.)

MJ: ___________, a stipulation of fact is an agreement among the trial counsel, your defense counsel,

and you that the contents of the stipulation are true, and if entered into evidence, are uncontradicted

facts in this case. No one can be forced to enter into a stipulation, so you should enter into it only if

you truly want to do so. Do you understand this? ACC: (Responds.)

MJ: Are you voluntarily entering into this stipulation because you believe it is in your best interest to

do so? ACC: (Responds.)

MJ: If I admit this stipulation into evidence it will be used in two ways.

First, I will use it to determine if you are, in fact, guilty of the offense(s) to which you have pled

guilty.

(IF JUDGE ALONE TRIAL): Second, I will use it to determine an appropriate sentence for you.


Ch 2, §II, para 2-2-2

(IF MEMBERS TRIAL): Second, the trial counsel may read it to the court members and they will

have it with them when they decide upon your sentence.

MJ: Do you understand and agree to these uses of the stipulation? ACC: (Responds.)

MJ: Do both counsel also agree to these uses? TC/DC: (Responds.)

MJ: ___________, a stipulation of fact ordinarily cannot be contradicted. If it should be contradicted

after I have accepted your guilty plea, I will reopen this inquiry. You should, therefore, let me know

if there is anything whatsoever you disagree with or feel is untrue. Do you understand that? ACC: (Responds.)

MJ: At this time, I want you to read your copy of the stipulation silently to yourself as I read it to myself.

NOTE: The MJ should read the stipulation and be alert to resolve inconsistencies between what is stated in the stipulation and what the accused says during the providence inquiry.

Have you finished reading it? ACC: (Responds.)

MJ: ___________, is everything in the stipulation true? ACC: (Responds.)

MJ: Is there anything in the stipulation that you do not wish to admit is true? ACC: (Responds.)

MJ: Do you agree under oath that the matters contained in the stipulation are true and correct to the

best of your knowledge and belief? ACC: (Responds.)

MJ: Defense counsel, do you have any objections to Prosecution Exhibit ___ for Identification? DC: (Responds.)


Ch 2, §II, para 2-2-3

MJ: Prosecution Exhibit ___ for Identification is admitted into evidence subject to my acceptance of

the accused’s guilty plea.

2–2–3. GUILTY PLEA FACTUAL BASIS

MJ: ___________, I am going to explain the elements of the offense(s) to which you have pled guilty.

By “elements” I mean those facts which the prosecution would have to prove beyond a reasonable

doubt before you could be found guilty if you had pled not guilty. When I state each element, ask

yourself two things: First, is the element true and second, whether you wish to admit that it is true.

After I list the elements for you, be prepared to talk to me about the facts regarding the offense(s).

MJ: Do you have a copy of the charge sheet(s) in front of you? ACC: (Responds.)

NOTE: For each specification to which the accused pled guilty, proceed as follows:

MJ: Please look at (the) specification (___) of (the) charge (___), in violation of Article ______ of the

Uniform Code of Military Justice. The elements of that offense, ___________, are:

NOTE: List elements, explain appropriate definitions using applicable language from Chapter 3.

MJ: Do you understand the elements (and definitions) as I have read them to you? ACC: (Responds.)

MJ: Do you have any questions about any of them? ACC: (Responds.)

MJ: Do you understand that your plea of guilty admits that these elements accurately describe what

you did? ACC: (Responds.)

MJ: Do you believe and admit that the elements (and definitions taken together) correctly describe

what you did? ACC: (Responds.)

MJ: At this time, I want you to tell me why you are guilty of the offense listed in (the) specification

(___) of (the) charge (___). Tell me what happened. ACC: (Responds.)


Ch 2, §II, para 2-2-4

NOTE: The MJ must elicit the facts leading to the guilty plea by conducting a direct and personal examination of the accused as to the circumstances of the alleged offense(s). The MJ must do more than elicit legal conclusions. The MJ’s questions s h o u l d b e a i m e d a t d e v e l o p i n g t h e a c c u s e d ’ s v e r s i o n o f w h a t h a p p e n e d i n t h e accused’s own words, and determining if the acts or omissions encompass each and every element of the offense(s) to which the guilty plea relates. The MJ must be alert to the existence of any inconsistencies or possible defenses raised by the stipulation or the accused’s testimony and, if they arise, the MJ must discuss them thoroughly with the accused. The MJ must resolve them or declare the plea improvident to the applicable specification(s).

NOTE: After obtaining the factual basis from the accused, the MJ should secure the accused’s specific admission as to each element of the offense, e.g., as follows:

MJ: Do you admit that you (left your unit on ______) (______) ? ACC: (Responds.)

MJ: Do you admit that you (left without authority from someone who could give you leave) (______)? ACC: (Responds.)

MJ: And that (you did not return until ______) (______)? ACC: (Responds.)

NOTE: After covering all offenses to which the accused pled guilty, the MJ continues as follows:

MJ: Does either counsel believe any further inquiry is required? TC/DC: (Respond.)

2–2–4. MAXIMUM PUNISHMENT INQUIRY

MJ: Trial counsel, what do you calculate to be the maximum punishment authorized in this case

based solely on the accused’s guilty plea? TC: (Responds.)

MJ: Defense counsel, do you agree? DC: (Responds.)

MJ: ___________, the maximum punishment authorized in this case based solely on your guilty plea

is ___________. A fine may also be adjudged.

NOTE: Before total forfeitures and a fine can be approved resulting from a guilty plea at a GCM, the accused must be advised that the pecuniary loss could exceed total forfeitures. Moreover, to have any fine approved, the MJ must advise the accused of the possibility of a fine during the providence inquiry.


Ch 2, §II, para 2-2-5

MJ: On your plea of guilty alone this court could sentence you to the maximum punishment which I

just stated. Do you understand that? ACC: (Responds.)

MJ: Do you have any questions as to the sentence that could be imposed as a result of your guilty

plea? ACC: (Responds.)

MJ: Trial counsel, is there a pretrial agreement in this case? TC: (Responds.)

NOTE: If no pretrial agreement exists, continue. If a pretrial agreement exists and trial is by Judge Alone: Go to 2-2-6, PRETRIAL AGREEMENT (JUDGE ALONE). I f a p r e t r i a l a g r e e m e n t e x i s t s a n d t r i a l i s w i t h c o u r t m e m b e r s : G o t o 2 - 2 - 7 , PRETRIAL AGREEMENT (MEMBERS).

2–2–5. IF NO PRETRIAL AGREEMENT EXISTS

MJ: Counsel, even though there is no formal pretrial agreement, are there any unwritten agreements

or understandings in this case? TC/DC: (Respond.)

MJ: (___________), has anyone made any agreements with you or promises to you to get you to

plead guilty? ACC: (Responds.)

NOTE: Go to 2-2-8, ACCEPTANCE OF GUILTY PLEA

2–2–6. PRETRIAL AGREEMENT (JUDGE ALONE)

MJ: Trial counsel, have both the offer portion and the quantum portion marked as separate

Appellate Exhibits and then hand me only the offer portion. Also, ensure that the accused has a copy

of the entire agreement in front of (him) (her). TC: (Complies.)

MJ: ___________, I have before me what has been marked as Appellate Exhibit ___, which is the

offer portion of your pretrial agreement, and your defense counsel is showing to you Appellate


Ch 2, §II, para 2-2-6

Exhibit ___, the quantum portion of your pretrial agreement. Did you sign this pretrial agreement? ACC: (Responds.)

MJ: Did you read it thoroughly before you signed it? ACC: (Responds.)

MJ: Do you understand the contents of your pretrial agreement? ACC: (Responds.)

MJ: ___________, did anyone force you in any way to enter into this agreement? ACC: (Responds.)

MJ: ___________, does this agreement contain all the understandings or agreements that you have in

this case? ACC: (Responds.)

MJ: Has anyone made any promises to you that are not written into this agreement in an attempt to

get you to plead guilty? ACC: (Responds.)

MJ: Counsel, are Appellate Exhibits ___ and ___ the full and complete agreement in this case and

are you satisfied that there are no other agreements? TC/DC: (Responds.)

MJ: Basically, a pretrial agreement means you agree to plead guilty and in return, the convening

authority agrees to take some favorable action in your case, usually in the form of limiting the

sentence that (he) (she) will approve. Do you understand that? ACC: (Responds.)

MJ: The law requires that I discuss the conditions of your agreement with you. Let’s look at

Appellate Exhibit ___, the offer portion of your agreement.

NOTE: Pretrial Agreement Terms. The military judge must discuss each provision in a pretrial agreement with the accused and obtain the accused’s understanding of the agreement. Special attention must be given to terms that purport to waive motions. R.C.M. 705(c) prohibits any term in a pretrial agreement to which the accused did not freely and voluntarily agree or any term which deprives the accused of the right


Ch 2, §II, para 2-2-6

to counsel, the right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to complete sentencing proceedings, or the right to complete and effective exercise of post-trial and appellate rights. While military appellate courts have generally upheld waiver of evidentiary objections in pretrial agreements, they have voided pretrial agreement terms which require the accused to waive all motions, or to waive unlawful command influence issues unless t h e w a i v e r o r i g i n a t e d w i t h t h e d e f e n s e a n d c o n c e r n e d o n l y u n l a w f u l c o m m a n d i n f l u e n c e i s s u e s d u r i n g t h e a c c u s a t o r y p h a s e o f t h e c o u r t - m a r t i a l . T h e p r e t r i a l agreement cannot make a trial an empty ritual. See Section VII for scripts for the following clauses that may appear in pretrial agreements:

Dismissal of charge: 2-7-4 Testify truthfully in another case: 2-7-5 Operation of Art. 58a on suspended sentence: 2-7-6 Suspension without deferment: 2-7-7 Waiver of Art. 32 investigation: 2-7-8 Waiver of members: 2-7-9 Waiver of certain motions: 2-7-10 and 2-7-11

MJ: I am not going to look at Appellate Exhibit ___, the quantum portion, until after I announce the

sentence in your case. But, I want you to now look at the quantum portion and read it to yourself.

Does that document correctly state what you and the convening authority agreed to? ACC: (Responds.)

MJ: Counsel, are there any conditions or terms in the quantum portion other than a limitation on

sentence? TC/DC: (Responds.)

N O T E : I f o t h e r c o n d i t i o n s e x i s t , t h e M J s h o u l d c o v e r t h e c o n d i t i o n s w i t h o u t discussing the sentence limitation.

MJ: ___________, you get the benefit of whichever is less, each element of the sentence of the court

or that contained in your pretrial agreement. If the sentence adjudged by this court is greater than

the one provided in the pretrial agreement, the convening authority must reduce the sentence to one

no more severe than the one in your pretrial agreement. On the other hand, if the sentence of this

court is less than the one in your agreement, the convening authority cannot increase the sentence

adjudged. Do you understand that? ACC: (Responds.)


Ch 2, §II, para 2-2-6

NOTE: The MJ may ask the following question if appropriate:

(IF ACCUSED IS CLOSE TO ETS DATE) (MJ: If your ETS date arrives while you are serving

confinement as a part of your sentence, then all of your military pay and allowances will stop on your

ETS date. Do you understand that? ACC: (Responds))

MJ: ___________, have you had enough time to discuss this agreement with your defense counsel? ACC: (Responds.)

MJ: Are you satisfied with your defense counsel’s advice concerning this pretrial agreement? ACC: (Responds.)

MJ: Did you enter the agreement of your own free will? ACC: (Responds.)

MJ: Has anyone tried to force you to make this pretrial agreement? ACC: (Responds.)

MJ: Do you have any questions about your pretrial agreement? ACC: (Responds.)

MJ: Do you fully understand all the terms of the pretrial agreement and how they affect your case? ACC: (Responds.)

MJ: ___________, are you pleading guilty not only because you hope to receive a lighter sentence,

but also because you are convinced that you are, in fact, guilty? ACC: (Responds.)

MJ: Do counsel for both sides agree with the court’s interpretation of the pretrial agreement? TC/DC: (Respond.)

NOTE: Go to 2-2-8, ACCEPTANCE OF GUILTY PLEA.


Ch 2, §II, para 2-2-7

2–2–7. PRETRIAL AGREEMENT (MEMBERS)

MJ: Trial counsel, have both the offer portion and the quantum portion of the pretrial agreement

marked as separate appellate exhibits, ensure that the accused has a copy in front of (him) (her), and

then hand them to me. TC: (Complies.)

MJ: ___________, I have before me Appellate Exhibit ___, the offer portion, and Appellate Exhibit

___, the quantum portion, of your pretrial agreement. Did you sign these documents? ACC: (Responds.)

MJ: Did you read them thoroughly before you signed them? ACC: (Responds.)

MJ: Do you understand the contents of your pretrial agreement? ACC: (Responds.)

MJ: ___________, did anyone force you in any way to enter into this agreement? ACC: (Responds.)

MJ: ___________, does this agreement contain all the understandings or agreements that you have in

this case? ACC: (Responds.)

MJ: Has anyone made any promises to you that are not written into this agreement in an attempt to

get you to plead guilty? ACC: (Responds.)

MJ: Counsel, are Appellate Exhibits ___ the full and complete agreement in this case and are you

satisfied that there are no other agreements? TC/DC: (Respond.)

MJ: Basically, a pretrial agreement means you agree to plead guilty and in return the convening

authority agrees to take some favorable action in your case, usually in the form of limiting the


Ch 2, §II, para 2-2-7

sentence that (he) (she) will approve. Do you understand that? ACC: (Responds.)

MJ: The law requires that I discuss the conditions of your agreement with you. Let’s look at the offer

portion of your agreement.

NOTE: Pretrial Agreement Terms. The military judge must discuss each provision in a pretrial agreement with the accused and obtain the accused’s understanding of the agreement. Special attention must be given to terms that purport to waive motions. R.C.M. 705(c) prohibits any term in a pretrial agreement to which the accused did not freely and voluntarily agree or any term which deprives the accused of the right to counsel, the right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to complete sentencing proceedings, or the right to complete and effective exercise of post-trial and appellate rights. While military appellate courts have generally upheld waiver of evidentiary objections in pretrial agreements, they have voided pretrial agreement terms which require the accused to waive all motions, or to waive unlawful command influence issues unless t h e w a i v e r o r i g i n a t e d w i t h t h e d e f e n s e a n d c o n c e r n e d o n l y u n l a w f u l c o m m a n d i n f l u e n c e i s s u e s d u r i n g t h e a c c u s a t o r y p h a s e o f t h e c o u r t - m a r t i a l . T h e p r e t r i a l agreement cannot make a trial an empty ritual. See Section VII for scripts for the following clauses that may appear in pretrial agreements:

Dismissal of charge: 2-7-4 Testify truthfully in another case: 2-7-5 Operation of Art. 58a on suspended sentence: 2-7-6 Suspension without deferment: 2-7-7 Waiver of Art. 32 investigation: 2-7-8 Waiver of members: 2-7-9 Waiver of certain motions: 2-7-10 and 2-7-11

MJ: Appellate Exhibit ___, the quantum po

Legal Services Military Judges’ Benchbook · 2008. 3. 25. · Initial Session Through...

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