Spcm By Mj Alone Question?

[SHORTY LONG]

What is the name of your state? OHIO

13 JULY 2006

Respectfully, when one (the accused) is Courted by way of a
SPCM before a MJ alone with a pre-guilty plea entered; and
when the [accused] takes the stand for a direct colloguy
by the MJ, DOES THE ACCUSED BY LAW, HAVE TO BE SWORN
IN UNDER OATH, BEFORE THEY ANSWER THE MJ'S QUESTONS
AND FOR THERE CONVICTION TO BE LAWFULLY HAD?
If the [accused] does, then, where in the UCMJ, the Manual
for Courts Martial, and the Rules for Courts Martial may this
be found? In advance, thank you for your time and help.

Respectfully Submitted,
Shorty

 

[fozzy2]

I don't have a text handy and can't quickly locate it on-line, but I it appears that somewhere in R.C.M. 910 (rules for court martial section 910) you will find it. I know that trial guides certainly include the judge counseling on the necessity of taking the oath and when it should be done -- but the ones I see don't cite a specific regulation. I did find what appear to be a secondhand Westlaw keycite:

U.S. v. Castile, 29 M.J. 941
ACMR,1989
While a formal plea is clearly preferable, there is no specific ritual prescribed for entering a guilty plea; where it is clear that accused has knowingly and intelligently admitted all elements of offense, his actions amount to a plea of guilty.


It would appear that right to counsel and "knowingly and intelligently" are more important than the administration of an oath. Lack of an oath would seem prejudicial to the prosecution, not the defense.

 

[badapple40]

There is no obligation for the person to be under oath. The plea procedure was established in United States v. Care, 18 U.S.C.M.A. 535 (1969)

There, the Court held that "we think that a plea of guilty may meet required standards if on the basis of the whole record the showing is clear that the plea was truly voluntary, even if the trial judge has not personally addressed the accused and determined that the defendant possesses an understanding of the law in relation to the facts."

Until 1984, military practice precluded placing an accused under oath during inquiry into the providence of his guilty pleas. The rationale of this practice was that an oath might "have a dampening effect" on the colloquy between an accused and the military judge which is necessary in establishing the basis for a plea of guilty. United States v. Simpson, 17 U.S.C.M.A. 44, 46, 37 C.M.R. 308, 310 (1967). In military practice -- unlike the rule in many courts, see North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) -- a plea of guilty cannot be received unless it has a factual basis. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Thus, it is especially important that the accused speak freely so that a factual basis will be clearly established in the record.

In Simpson, we concluded that to take sworn testimony from an accused during a providence inquiry was inconsistent with the free flow of information between him and the law officer and so was "contrary to the spirit of the inquiry." 17 U.S.C.M.A. at 46, 37 C.M.R. at 310. Likewise, references to such information in the argument on sentence were held to be improper. United States v. Richardson, 6 M.J. 654, 655 (N.C.M.R.1978), pet. denied, 6 M.J. 280 (C.M.A.1979).

On August 1, 1984, the military practice that then existed was changed by the Manual for Courts-Martial, United States, 1984, to require that an accused who proffers a plea of guilty respond under oath to the inquiry of the military judge. R.C.M. 910(e), Manual, supra, the rule mandating the oath, also provides for prosecution of an accused who makes a false statement during the providence hearing. R.C.M. 910(c)(5).

Nevertheless, the Army Court of Criminal Appeals has held that it is not reversible error, even after the rule change, not to place the accused under oath. United States v. Riley, 35 M.J. 547 (ACCA 1992). The Navy/Marine Corps Court of Criminal Appeals has agreed with this position that it is not a violation of the Defendants rights not to obtain the plea and admissions under oath. The requirement of an oath during the plea colloquy is "not designed to benefit an accused, but to subject an accused to the possibility of a perjury prosecution for false testimony rendered in the providence inquiry." United States v. Midlam, 2005 CCA LEXIS 150, NMCCA 200101884 (May 6, 2006).

Shorty: I have told you again, and again, and again that the fact that you were not sworn does not make any difference as to whether or not your guilty plea was lawful. I've now provided all of the military case law available on the subject in support. I WILL NOT address this situation again with you. You've been given the answer. Asking again and again does not change what the correct answer is.

The fact that you were not placed under oath does NOT affect the validity of your guilty plea.

-badapple, COL, JA, USAFR

 

[SHORTY LONG]

14 JULY 06

Fozzy2, Sir, respectfully, thank you for sharing this information! The only
thing I have read (after many times) of reading this spcm transcript, is that,
the prosecution only offered one njp and asked for a five minute recess to
mask certain parts of the record! It is clear that the person's gp was not
intelligently and fully understanding everything; thus, it was improvidently
made, and under exteme duress. But, again, I beg the question, does
one need to be sworn in under Oath before they take the stand in a SPCM?
It would seem to me, for any trial that a person's life, limb, etc., are at
stake, and for the trial to be proper, then the person should be placed
under oath for their conviction that included a "bcd" to be lawful!

Thanks again Sir, for your time and sharing; I need to get hard facts on this
issue; maybe Col. BadApple may be inclined to shed some light also.

Fozzy2, Sir, if you should find hard facts to this question, I would greatly
appreciate where it may be found at; also, I am without the proper resources
such as Westlaw and Lexius to do any meaningful research on; and by the way,
the only people who were sworn in, was the MJ, DC, TC, and Court Reporter Sir.

Respectfully, Shorty

 

[badapple40]

I did shed light on this and give you the correct answer.

See above. It was lawful.

 

[SHORTY LONG]

14 JULY 06

Sir, respectfully Col. BadApple40, thank you for your time in clearly answering my question with your articulate explaniation, which is very clear to me now! Sir, I think timing made its way in not seeing your reply earlier, in which, I offer my deepest gratiitude of thanks to extend to you, for all that you have shared, including the Case Law Sir!

Very respectfully yours,
Shorty