Current through Register Vol. 50, No. 3, March 20, 2024
A. Types of Pleas
and Their Effect
1. Not Guilty Plea. Such a
plea places all matters in issue and requires the prosecution to prove the
accused's guilt beyond a reasonable doubt. If an accused fails or refuses to
plead, or makes an irregular plea, the military judge shall enter a plea of not
guilty for the accused.
2. Guilty
Plea. A plea of guilty, if accepted by the military judge, admits the accused's
guilt and relieves the prosecution of the burden of proving guilt beyond all
reasonable doubt. Before the plea is accepted, the accused must admit every
essential element of the offense. [See R.C.M. 910(E) discussion.] The military
judge must make a searching and detailed inquiry of the accused to determine if
the accused understands the plea, that it is entered into voluntarily, and that
the accused, is, in fact guilty. [See R.C.M. 910(c).]
3. Guilty by Exceptions or Guilty with
Exceptions and Substitutions. These types of pleas "except out" certain
language from the charged specification and/or substitutes words in the
specification, thereby entering a plea to an offense included in the offense
charged. The result is to plead not guilty to the charged offense but guilty to
a different, and often lesser included offense. For example, if the charged
offense were robbery and the guilty plea by exceptions and substitutions was to
the lesser included offense of wrongful appropriation, the defense counsel
would state:
4. "Your honor, the
accused, _____, pleads to the specification: guilty, except the words, 'by
means of force and violence steal from the person of _____ against his will,'
substituting therefore the words 'wrongfully appropriate,' to the excepted
words not guilty, to the substituted words guilty to the charge, not guilty,
but guilty of a violation of Article 121."
5. A plea of guilty to a lesser included
offense does not bar the prosecution from proceeding of the offense as charged
and the prosecution need not prove the elements of the lesser offense admitted
in the plea. The military judge must make a guilty plea inquiry into the plea
of guilty by exceptions and substitutions.
6. Mixed Pleas. An accused may enter plea(s)
of guilty to some specifications, guilty by exceptions and substitutions to
others, and/or not guilty to other specifications. After a guilty plea inquiry
and acceptance by the military judge of any guilty pleas, the prosecution may
attempt to prove the remaining offenses. If the accused pleads guilty to some
but not all of the specifications, the accused's admission of an element in one
specification does not relieve the Government from the burden of proving the
same element in the remaining, contested specifications. Thus, admissions
implicit in a guilty plea to one offense cannot be used as evidence to support
the findings of guilty of an essential element of a separate and different
offense.
7. Conditional Pleas. With
the approval of the military judge and the consent of the government, an
accused may enter a conditional plea of guilty, reserving in writing the right,
on further review or appeal, to review of the adverse determination of any
specified pretrial motion. The specified grounds preserved for appeal must be
actually litigated at the trial court level. If the accused prevails on further
review or appeal, he is allowed to withdraw the guilty plea. The conditional
plea enables the accused to preserve his appeal and also saves the government
the time and expense of a trial on the merits. Conditional pleas are not
normally granted unless the motion is capable of full pretrial litigation. When
the pretrial motion requires trial on the merits for a full development of the
underlying factual issues or the motion is not "case dispositive," the
conditional plea is normally denied.
B. Guilty Plea Inquiry. The guilty plea or
"providence inquiry" is a dialogue between the military judge and the accused.
It is made on the record to assure the military judge that the accused
personally understands the meaning and effect of his plea and that an adequate
factual basis exists for acceptance of an admission of guilt. The components of
the guilty plea inquiry, listed in RCM 910(c) are:
1. The nature of the offense to which the
plea is offered, the maximum possible penalty and any mandatory minimum
penalty.
2. The right to
representation by counsel.
3. The
rights to confrontation and cross-examination of one's accusers, right against
compulsory self-incrimination, right to trial of the facts by
court-martial.
4. The factual basis
for the plea.
5. The plea agreement
inquiry.
C. Refusal to
Accept Guilty Plea. The military judge will refuse to accept an accused's plea
of guilty and enter a not guilty plea in the following situations:
1. The accused enters an "irregular" plea,
such as a plea of guilty while denying criminality, or "guilty but insane," or
"guilty to the charge but not guilty to the specification," or "nolo
contendere".
2. There are
substantial, irreconcilable inconsistencies between the plea and statements of
the accused or the evidence. The military judge shall make inquiry to negate
any defenses raised by the accused, and may call witnesses to resolve any such
potential defense.
3. The accused
enters an "improvident" plea (i.e. without understanding its meaning)
4. The accused refuses to enter a
plea.
D. Withdrawal of
Guilty Plea. Prior to acceptance of a guilty plea by the military judge, the
accused has an absolute right to withdraw a guilty plea and enter a plea of not
guilty or guilty to a lesser included offense. After acceptance of the plea,
but before the sentence is announced, an accused can request permission from
the military judge to withdraw a guilty plea. The military judge should
ordinarily grant such a request if it is shown that the guilty plea was induced
by fraud, mistake, imposition, misrepresentation, or misapprehension of the
accused of his legal rights.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
29:11(F).
