Chapter III · Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters

R.C.M. 309. Pre-referral judicial proceedings

2024 Manual for Courts-Martial, United States · Last updated

Recent revisions Summary of changes Cited by (15)
(a) In general.
(1) A military judge detailed under regulations of the Secretary concerned may conduct proceedings under Article 30a, before referral of charges and specifications to court-martial for trial, and may issue such rulings and orders as necessary to further the purpose of the proceedings. A military judge may issue such orders and rulings only when the matters would be subject to consideration by a military judge in a general or special court-martial.
Discussion
In determining whether to issue a ruling or order before referral, a military judge may consider chain of command recommendations as to disposition of a charged offense or offenses, representations of counsel or a federal law enforcement officer, the frequency or severity of a charged offense or offenses, and any other matter deemed relevant by the military judge.
(2) The matters that may be considered and ruled upon by a military judge under this rule are limited to those matters specified in R.C.M. 309(b).
(3) If any matter in a proceeding under this rule becomes a subject at issue with respect to charges that have been referred to a general or special court-martial, the matter, to include any motions, related papers, and the record of the hearing, if any, shall be provided to the military judge detailed to the court-martial.
(b) Pre-referral matters.
(1) Pre-referral investigative subpoenas. A military judge may, upon application by the Government, consider whether to issue a pre-referral investigative subpoena under R.C.M. 703(g)(3)(C). The proceeding may be conducted ex parte and may be conducted in camera.
(2) Pre-referral warrants or orders for wire or electronic communications. A military judge may, upon written application by a federal law enforcement officer or authorized counsel for the Government in connection with an ongoing investigation of an offense or offenses under the UCMJ, consider whether to issue a warrant or order for wire or electronic communications and related information as provided under R.C.M. 703A. The proceeding may be conducted ex parte and may be conducted in camera.
Discussion
The defense may request that the trial counsel or other counsel for the Government make an application under R.C.M. 309(b)(1) or (b)(2) of this rule. The military judge may, as a matter of discretion, afford the defense an opportunity to be heard.
(3) Requests for relief from subpoena or other process. A person in receipt of a pre referral investigative subpoena under R.C.M. 703(g)(3)(C), a victim whose personal or confidential information has been subpoenaed under 703(g)(3)(C)(ii), a service provider in receipt of a warrant or court order to disclose information about wire or electronic communications under R.C.M. 703A(a), or a person ordered to sit for a deposition under R.C.M. 702(b)(2) may request relief on grounds that compliance with the subpoena, warrant, or order is unreasonable, oppressive, or prohibited by law. The military judge shall review the request and shall either order the person or service provider to comply with the subpoena, warrant, or order, or modify or quash the subpoena, warrant, or order, as appropriate. In a proceeding under this paragraph, the United States shall be represented by an authorized counsel for the Government. revised · Exec. Order 14130 (Dec. 20, 2024)
Discussion
See Article 46; R.C.M. 703(g)(3)(G); R.C.M. 703A(c)(2).
(4) Pre-referral matters referred by an appellate court. When a Court of Criminal Appeals or the Court of Appeals for the Armed Forces, in the course of exercising the jurisdiction of such court, remands the case for a pre-referral judicial proceeding, a military judge may conduct such a proceeding under this rule. This includes matters referred by a Court of Criminal Appeals under subsection (e) of Article 6b.
(5) Pre-referral matters under subsection (c) of Article 6b. The military judge may designate a suitable person to assume the rights of a victim who is under 18 years of age (but who is not a member of the armed forces), or who is incompetent, incapacitated, or deceased. Upon appointment by the military judge, the legal guardian of the victim, the representative of the victim’s estate, a family member, or any other person designated as suitable by the military judge, may assume the rights of the victim. Under no circumstances may the military judge designate the accused to assume the rights of the victim.
(6) Pretrial confinement of an accused. After action by the 7-day reviewing officer under R.C.M. 305(j)(2)(C), a military judge may, upon application of an accused for appropriate relief, review the propriety of pretrial confinement. A military judge may order release from pretrial confinement under the provisions of R.C.M. 305(k)(1).
(7) The mental capacity or mental responsibility of an accused.
(A) A military judge may, under the provisions of R.C.M. 706(b)(1), order an inquiry into the mental capacity or mental responsibility of an accused before referral of charges. The proceeding may be conducted ex parte and may be conducted in camera.
(B) A military judge may, under the provisions of R.C.M. 909, conduct a hearing to determine the mental capacity of the accused.
(8) A request for individual military counsel. When an accused requests individual military counsel prior to charges being referred to a general or special court-martial, a military judge may review the request subject to the provisions of R.C.M. 506(b).
(9) Victim’s petition for relief.
(A) A victim of an offense under the UCMJ, as defined in Article 6b(b), may file a motion pre-referral requesting that a military judge require a preliminary hearing officer conducting a preliminary hearing under R.C.M. 405 to comply with:
(i) Articles 6b or 32;
(ii) R.C.M. 405; or
(iii) Mil. R. Evid. 412, 513, 514, or 615.
(B) The military judge may grant or deny such a motion. The ruling is subject to further review pursuant to Article 6b(e).
(10) Pre-referral depositions. A military judge may, upon application by a party, consider whether to order a pre-referral deposition under R.C.M. 702(c)(2).
(c) Procedure for submissions. The Secretary concerned shall prescribe the procedures for receiving requests for proceedings under this rule and for detailing military judges to such proceedings.
(d) Hearings. Any hearing conducted under this rule shall be conducted in accordance with the procedures generally applicable to sessions conducted under Article 39(a), and R.C.M. 803.
(e) Record. A separate record of any proceeding under this rule shall be prepared and forwarded to the convening authority, special trial counsel, or any combination thereof, with authority to dispose of the charges or offenses in the case. If charges are referred to trial in the case, such record shall be included in the record of trial.
(f) Military magistrate. If authorized under regulations of the Secretary concerned, a military judge detailed to a proceeding under this rule, other than a proceeding under paragraph (b)(2), (b)(7)(B), or (b)(8) of this rule, may designate a military magistrate to preside and exercise the authority of the military judge over the proceeding.
Cross-referencesCited by 15Cites 25
Cited by

Provisions elsewhere in the Manual whose text cites R.C.M. 309. Each link opens the citing provision.

Rules for Courts-Martial
R.C.M. 305(h) — Pretrial confinement
…accused has been confined are referred or as part of a pre-referral proceeding conducted in accordance with R.C.M. 309. For purposes of this subsection (R.C.M. 305(h)), “any commander” includes the immediate or higher…
R.C.M. 305(k) — Pretrial confinement
…has been confined are referred to trial, or in a pre-referral proceeding conducted in accordance with R.C.M. 309, the military judge shall review the propriety of pretrial confinement upon motion for appropriate relief.
R.C.M. 405(i)(3)(B)(i) — Preliminary hearing
…through noncompulsory means or by a pre-referral investigative subpoena issued by a military judge under R.C.M. 309 or counsel for the Government in accordance with the process established by R.C.M. 703(g)(3)(C).
R.C.M. 405(i)(3)(B)(iii) — Preliminary hearing
…investigative subpoena for the defense requested evidence from a military judge in accordance with R.C.M. 309 or authorization from the general court-martial convening authority to issue an investigative subpoena. If…
…the Government when authorized by the general court-martial convening authority or by a military judge under R.C.M. 309. The preliminary hearing officer has no authority to issue a pre-referral investigative subpoena.
R.C.M. 503(b)(4) — Detailing members, military judge, and counsel, and designating military magistrates
…a detailed military judge may designate a military magistrate to perform pre-referral duties under R.C.M. 309, and, with the consent of the parties, to preside over a special court-martial consisting of a military…
R.C.M. 702(b)(2) — Depositions (309(b)(3))
…counsel exercises authority: (i) Before referral, only a military judge may order a deposition, pursuant to R.C.M. 309(b)(3). (ii) After referral, only a military judge may order a deposition.
R.C.M. 703(g)(3)(C)(i) — Production of witnesses and evidence (309(b))
…who issued the subpoena or for inspection in accordance with an order issued by the military judge under R.C.M. 309(b).
Discussion under R.C.M. 703(g)(3)(C)(i) — Production of witnesses and evidence
A pre-referral investigative subpoena may be issued in accordance with R.C.M. 309 or subsection (g)(3)(D)(v) of this rule for the production of evidence not under control of the government…
R.C.M. 706(b)(1) — Inquiry into the mental capacity or mental responsibility of the accused
…convening authority, or by a military judge or magistrate in a proceeding conducted in accordance with R.C.M. 309.
…referral as well as after being detailed to conduct any pre-referral proceeding pursuant to Article 30a. See R.C.M. 309. Conferences between the military judge and counsel may be held when necessary before or during trial. The…
Discussion under R.C.M. 803 — Court-martial sessions without members under Article 39(a)
…concerning waiver by the accused of the right to be present. See also R.C.M. 802 concerning conferences. See R.C.M. 309 concerning proceedings conducted before referral under Article 30a.
R.C.M. 909(c)(3) — Capacity of the accused to stand trial by court-martial
…a military judge may conduct a hearing to determine the mental capacity of the accused in accordance with R.C.M. 309 and R.C.M. 909(e) at any time prior to referral.
R.C.M. 1112(f)(1) — Certification of record of trial; general and special courts-martial (309(a)(3))
A copy of all materials required to be provided to the military judge pursuant to R.C.M. 309(a)(3);
Military Rules of Evidence
Mil. R. Evid. 315(b)(3) — Probable cause searches (309(b)(2))
…judge pursuant to 18 U.S.C. 2703(a), (b)(1)(A), or (c)(1)(A) in accordance with 10 U.S.C. 846(d)(3) and R.C.M. 309(b)(2) and R.C.M. 703A.
R.C.M. 309 cites

Provisions named in the text of R.C.M. 309. Where the cited provision is on this site, the link opens it.