Additional TC Duties
Overview of additional TC duties in post-trial processes:
- Correct number of copies of ROT specified.
- Security classification of ROT.
- Errata. Examine the ROT before authentication and make corrections. RCM1103(i)(1)(A).
Unless unreasonable delay will result, DC will be given an opportunity to examine the ROT before authentication. RCM 1103(i)(1)(B). United States v. Bryant , 37 M.J. 668 (A.C.M.R. 1993). Review by DC before authentication is preferred, but will not result in return of record for new authentication absent showing of prejudice. See also United States v. Smith , 56 M.J. 711 (A.F. Ct. Crim. App. 2001).
Videotaped ROT procedures. Authorized in exceptional circumstances by the RCM. Not authorized in AR 27-10. M. Military Judges Duties / Responsibilities. United States v. Chisholm , 58 M.J. 733 (A. Ct. Crim. App. 2003), aff’d , 59 M.J. 151 (C.A.A.F. 2003) (holding that lower court’s decision was not “advisory” in nature; issue of whether a Trial Judge has the authority noted by the lower court not reached by the court). Both Article 38(a), UCMJ, and RCM 1103(b)(1)(A) make the military judge responsible for overseeing and ensuring that the record of trial is prepared. The court, after noting that preparation of the record of trial is a “shared responsibility” between the SJA and military judge, found that military judges “have both a duty and responsibility to take active roles in ‘directing’ the timely and accurate completion of court-martial proceedings.” 58 M.J. at 737. The court highlighted a military judge’s “inherent authority to issue such reasonable orders as may be necessary to enforce that legal duty,” noting that the manner in which he or she directs completion of the record is a matter within his or her “broad discretion.” Having said that, the court suggested several “remedial actions” available to a military judge: The exact nature of the remedial action is within the sound judgment and broad discretion of the military judge, but could include, among other things: (1) directing a date certain for completion of the record with confinement credit or other progressive sentence relief for each day the record completion is late; (2) ordering the accused’s release from confinement until the record of trial is completed and authenticated; or, if all else fails, and the accused has been prejudiced by the delay, setting aside the findings and the sentence with or without prejudice as to a rehearing. Id . at 737-38. Jurisdictions that choose to ignore a military judge’s order regarding preparation of the record of trial “do so at their peril.” Id . Note: although the CAAF found that the lower court decision was NOT advisory, the CAAF also noted that “the parties in a subsequent case are free to argue that specific aspects of an opinion . . . should be treated as non-binding dicta.” 59 M.J. at 152.