Subchapter II · Apprehension and Restraint
Article 10. Restraint of persons charged
2024 Manual for Courts-Martial, United States
See all changes(a) IN GENERAL.—
(1) Subject to paragraph (2), any person subject to this chapter who is charged with an offense under this chapter may be ordered into arrest or confinement as the circumstances require.
(2) When a person subject to this chapter is charged only with an offense that is normally tried by summary court-martial, the person ordinarily shall not be ordered into confinement.
(b) NOTIFICATION TO ACCUSED AND RELATED PROCEDURES.—
(1) When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken—
(A) to inform the person of the specific offense of which the person is accused; and
(B) to try the person or to dismiss the charges and release the person.
(2) To facilitate compliance with paragraph (1), the President shall prescribe regulations setting forth procedures relating to referral for trial, including procedures for prompt forwarding of the charges and specifications and, if applicable, the preliminary hearing report submitted under section 832 of this title (article 32).
Case Note
In determining reasonable diligence for the purposes of Article 10, UCMJ, courts must conduct a four-factor analysis articulated in Barker v. Wingo, 407 U.S. 514, (1972), which includes:
(1) Length of the delay — The total period of government-accountable delay from confinement to trial. A delay of sufficient length triggers a full analysis of the remaining factors.
(2) Reasons for the delay — Whether the government had legitimate justifications, such as case complexity, worldwide military logistics, operational necessities, or the need to gather scientific evidence.
(3) Whether the accused demanded a speedy trial — Whether and when the accused asserted the right, and how the government responded.
(4) Prejudice to the accused — Assessed in light of three recognized interests: (a) preventing oppressive pretrial incarceration; (b) minimizing anxiety and concern of the accused; and (c) limiting the possibility that the defense will be impaired.
None of these factors alone is a necessary or sufficient condition for finding a violation U.S. v. Cooley, 75 M.J. 247 (C.A.A.F. 2016). Courts look at the proceeding as a whole, remaining “mindful that we are looking at the proceeding as a whole and not mere speed.” U.S. v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005). Importantly, the CAAF held in U.S. v. Cooley, 75 M.J. 247 (C.A.A.F. 2016), that because Article 10 is triggered only by pretrial confinement, the prejudice prong requires something more than the mere fact of confinement itself.
(1) Length of the delay — The total period of government-accountable delay from confinement to trial. A delay of sufficient length triggers a full analysis of the remaining factors.
(2) Reasons for the delay — Whether the government had legitimate justifications, such as case complexity, worldwide military logistics, operational necessities, or the need to gather scientific evidence.
(3) Whether the accused demanded a speedy trial — Whether and when the accused asserted the right, and how the government responded.
(4) Prejudice to the accused — Assessed in light of three recognized interests: (a) preventing oppressive pretrial incarceration; (b) minimizing anxiety and concern of the accused; and (c) limiting the possibility that the defense will be impaired.
None of these factors alone is a necessary or sufficient condition for finding a violation U.S. v. Cooley, 75 M.J. 247 (C.A.A.F. 2016). Courts look at the proceeding as a whole, remaining “mindful that we are looking at the proceeding as a whole and not mere speed.” U.S. v. Mizgala, 61 M.J. 122 (C.A.A.F. 2005). Importantly, the CAAF held in U.S. v. Cooley, 75 M.J. 247 (C.A.A.F. 2016), that because Article 10 is triggered only by pretrial confinement, the prejudice prong requires something more than the mere fact of confinement itself.