18 Reporter 1 (1991)
R.C.M. 707 the New Speedy Trial Rules

handle is hein.journals/report18 and id is 95 raw text is: 


VOL 18, NO. 4


R.C.M. 707 AND THE NEW

SPEEDY TRIAL RULES

By Captain Eric D. Placke


Change 5 to the Manual for Courts-Martial,
Executive Order No. 12767, 27 June 19 91,
made a number of important changes in the way
we do business in military justice. Perhaps the
most significant, and one that is of immediate
concern to all Air Force practitioners, is the dra-
matic revision of Rule for Court-Martial 707, the
rule governing an accused's right to a speedy
trial. Although the wisdom and utility of the
changes in the speedy trial rule will likely be
the subject of some debate, such is beyond the
scope of this article. Rather, my objective is
merely to describe the changes in a way that is
understandable to those familiar with the old
rules, and useful to those who work in military
justice.

For convenience sake, the changes in the
speedy trial rules can be grouped into four cate-
gories: inception and termination dates, exclu-
sions and delays, the Burton rule, and remedies.
As we will see, major changes have been made
in each category.

           INCEPTION AND
       TERMINATION DATES
Change 5 revised both the general rules govern-
ing inception and termination dates, and the
rules governing several special situations. We
will examine the changes to the general rules
first, and then each of the special situations.
Under prior practice, the earlier of any of three
trigger events would start the 120 day speedy
trial clock: entry on active duty (for reservists
ordered to active duty under R.C.M. 204),
imposition of pretrial restraint under R.C.M.
304(a)(2)-(4) (restriction in lieu of arrest, arrest,
or pretrial confinement), or notice of preferral of
charges. This sometimes resulted in litigation
when there was a delay between preferral itself,
and subsequent notice to the accused of that
preferral. United States v. Maresca, 28 M.J. 328
(C.M.A. 1989); Thomas v. Eddington, 26 M.J. 95


(C.M.A. 1988). In an effort to close a potential
loophole for the government, and avoid need-
less litigation, the basic rule on trigger events
was changed. Entry on active duty under
R.C.M. 204 or imposition of pretrial restraint
under R.C.M. 304(a)(2)-(4) will still start the
clock, but otherwise an accused must no longer
wait until notified that charges have been pre-
ferred against him for the government's accoun-
tability to begin. Rather, preferral itself is now
the third possible trigger event, and will start
the clock if it isn't already ticking. R.C.M.
707(a). As with prior practice, the day of the
trigger event does not count for purposes of
computing the 120 day limit. R.C.M. 707(b)(1).

The waty in which the clock stops has also been
changed. Under the old rules, an accused was
brought to trial when either a guilty plea was
entered, or the presentation to the factfinder of
evidence on the merits began. Now, in all
cases, the accused is considered to have been
brought to trial, and thus the clock stops, at
arraignment. R.C.M. 707(b)(1). Again, as with
prior practice, the day the accused is brought to
trial does count for purposes of computing the
120 day limit. R.C.M. 707(b)(1).
In addition to these changes in the general rules
regarding inception and termination dates, the
rules governing several special situations have
been either clarified or changed.

In two of these special situations, the substance
of the rule remains unchanged. In the event of
multiple charges, under both prior practice and
the new rules, the inception date for the gov-
ernment's speedy trial accountability is deter-
mined separately for each charge. R.C.M.
707(b)(2). Likewise, although reworded, the
rule remains essentially the same in those cases
where an accused in pretrial restraint is released
before charges have been preferred. In such
cases, if the accused is released for a signifi-
cant period, the speedy trial clock will begin


The Repoir

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