United States v. Kossman: The Reasonable Diligence Standard for Article 10
Key takeaways
- Kossman rejected the Burton 90-day presumption and made reasonable diligence the test for Article 10 compliance.
- There is no safe day count: Article 10 may be violated in under 120 days — or under 90 — depending on the case.
- The standard tolerates “brief periods of inactivity in an otherwise active prosecution” — it demands diligence, not constant motion.
- An Article 10 motion lies when the government could readily have gone to trial but negligently or spitefully chose not to.
- The Kossman standard is now applied through the four Barker factors, and the remedy for a violation is dismissal with prejudice.
The case in one sentence
United States v. Kossman, 38 M.J. 258 (C.M.A. 1993) discarded the bright-line 90-day presumption of United States v. Burton and established reasonable diligence as the standard for whether the government has honored Article 10’s command to take immediate steps to try a confined accused.
Before Kossman: the Burton 90-day presumption
The statute at the center of the case speaks in unusually urgent terms:
“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.”Art. 10, UCMJ
Unlike the 120-day rule of R.C.M. 707, which applies in every preferred case, Article 10’s protections are triggered only when the accused is placed in pretrial confinement or arrest — and they are more stringent, because confinement itself is the injury the statute guards against. For two decades the courts enforced the command with arithmetic: under United States v. Burton, 44 C.M.R. 166 (C.M.A. 1971), pretrial confinement over 90 days created a presumptive Article 10 violation, which the government could overcome only by demonstrating due diligence.
The presumption had the virtues and vices of any bright line. It was predictable — and it invited both sides to litigate the calendar instead of the conduct, while implying that anything under 90 days was safe.
The holding: reasonable diligence, no magic number
Kossman rejected the Burton rule and reoriented the inquiry from counting to conduct. The standard for measuring compliance with Article 10 is reasonable diligence, and the court was explicit that no day count confers safety: Article 10 may be violated where the accused is brought to trial in fewer than 120 days — or fewer than 90 — though many circumstances can justify delays beyond those traditional markers. The court’s formulation:
“The touchstone . . . is not constant motion, but reasonable diligence in bringing the charges to trial. Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.”United States v. Kossman, 38 M.J. 258 (C.M.A. 1993)
Kossman also described where the motion lies: an Article 10 claim will succeed when the government “could readily have gone to trial . . . but negligently or spitefully chose not to.” The question is never the raw number of days; it is what the government actually did, and failed to do, while the accused sat confined.
Why it matters in courts-martial today
Kossman‘s standard is the living law of Article 10. Later cases supplied the analytical machinery: courts balance the four Barker v. Wingo, 407 U.S. 514 (1972) factors — length of delay, reasons, the accused’s demand, and prejudice — per United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999) and United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003), with United States v. Cooley confirming that balancing as the predominant test. United States v. Mizgala polices the standard itself — reasonable diligence, not gross negligence, and never the 120-day rule imported from R.C.M. 707.
Three practical consequences follow. First, Article 10 is stricter than the 120-day rule — a government comfortably inside R.C.M. 707 can still lose a confined case. Second, the government’s file matters more than its calendar: unexplained dead air is what loses these motions. Third, the remedy is dismissal with prejudice, which makes the diligence question the highest-stakes issue in many pretrial confinement cases.
The post-Kossman case law shows the standard working in both directions. In United States v. Hatfield, 44 M.J. 22 (C.A.A.F. 1996), an overall lack of forward motion in a relatively simple case — including a two-month delay in appointing defense counsel over incomplete paperwork — failed the test. In United States v. Thompson, 68 M.J. 308 (C.A.A.F. 2010), 145 days survived scrutiny where a jurisdictional handover with civilian authorities explained the gap and the defense did not demand a speedy trial until day 140. Diligence is proven or disproven by the file — and by the demands the defense did or did not make.
What this means if you’re confined awaiting trial
Do not let anyone tell you the government “has 120 days.” For a confined accused, the real question is whether the government is moving your case with reasonable diligence — and that question is answered by a record your defense team should be building now: written speedy trial demands, a week-by-week log of government activity and silence, and objections to every unexplained delay. Under Kossman, the government’s conduct is on trial. Make sure it is documented.
Where this case shows up in our guides
- Article 10: speedy trial for service members in confinement — the full modern doctrine built on Kossman.
- Speedy trial in the military — how Article 10 layers with R.C.M. 707 and the Constitution.
- R.C.M. 707 and excludable delay — the arithmetic rule Kossman refused to import into Article 10.
- Pretrial confinement and restraint — the custody that triggers the protection.
Practitioner’s note
Kossman changed what we investigate in a confined client’s case. Under a day-count rule, the defense watched the calendar; under reasonable diligence, we reconstruct the government’s file — who did what each week, which delays have contemporaneous explanations, and which explanations were invented after the demand letters arrived. In our experience the strongest Article 10 motions read like an audit, not an argument: a column of dates, a column of government activity, and long stretches where the second column is empty.
Frequently asked questions
What did United States v. Kossman decide?
It rejected the Burton rule, under which pretrial confinement over 90 days was presumptively an Article 10 speedy trial violation, and replaced it with a reasonable-diligence standard. The government must diligently move a confined accused's case toward trial, and no day count — over or under 90 — settles the question by itself.
Can Article 10 be violated in less than 90 days?
Yes. Kossman said expressly that Article 10 may be violated where an accused is tried in fewer than 120 days, or even fewer than 90, if the government failed to proceed with reasonable diligence. Equally, delays beyond those traditional periods can be justified by the circumstances of a particular case.
Does the government have to work on my case every single day?
No. The touchstone is reasonable diligence, not constant motion, and brief periods of inactivity in an otherwise active prosecution are acceptable. What the standard does not tolerate is unexplained dead air — a government that could readily have gone to trial but negligently or spitefully chose not to.
How do courts apply the Kossman standard now?
Through the four Barker v. Wingo factors — length of the delay, reasons for it, the accused's speedy trial demand, and prejudice — applied more exactingly than in a constitutional claim because the accused is confined. A violation is remedied by dismissal of the charges with prejudice.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has litigated the reasonable-diligence standard from both sides over more than 25 years — first as an Army prosecutor responsible for keeping confined cases moving, then as a defense counsel and civilian practitioner holding the government to Kossman’s demand. He has represented confined service members in courts-martial worldwide, and his cross-examination teaching shows in how these motions get built: government witnesses walked through their own empty calendar, week by week.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has defended service members in pretrial confinement for more than 20 years, in cases from sexual assault allegations to violent offenses across every branch. She drafts the demand letters and activity logs that turn Kossman’s abstract standard into concrete motions, and she legally reviewed this case summary against the Deskbook’s speedy trial chapter and current CAAF authority.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.