Authentication by MJ or judges in GCM or SPCM with adjudged BCD
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Authentication IAW service regulations for SPCM (same as GCM in AR 27-10). Substitute authentication rules provided ( Cruz-Rijos standard).
- Dead, disabled or absent: only exceptions to MJ authentication requirement. Article54(a). United States v. Cruz-Rijos , 1 M.J. 429 (C.M.A. 1976).
- TC may authenticate the ROT only if the military judge is genuinely unavailable fora lengthy period of time.
- PCS to distant place may qualify as absence. United States v. Lott , 9 M.J. 70 (C.M.A. 1980). Reduced precedential value in light of spread of technology (facsimiles, overnight delivery, etc.). Also justification for substitute authentication is less given the demise of the 90-day post-trial/confinement Dunlap rule. See United States v. Banks , 7 M.J. 92 (C.M.A. 1979).
- An extended leave may be sufficient. United States v. Walker , 20 M.J. 971 (N.M.C.M.R. 1985) (leave of thirty days is prolonged absence). But see United States v. Batiste , 35 M.J. 742 (A.C.M.R. 1992) (fifteen day leave does not equal prolonged absence); RCM 1104(a)(2)(B), discussion (substitute authentication only for emergencies; the brief, temporary absence of the MJ is not enough).
- Military judge’s release from active duty authorizes substitute authentication UP of RCM 1104(a)(2)(B). See United States v. Garman , 59 M.J. 677 (A. Ct. Crim. App. 2003); United States v. Gibson , 50 M.J. 575, 576 (N-M. Ct. Crim. App. 1999).
- A statement of the reasons for substitute authentication should be included in the ROT. United States v. Lott , 9 M.J. 70 (C.M.A. 1980).
- United States v. Allende , 66 M.J. 142 (C.A.A.F. 2008). Trial counsel made corrections to the record of trial, authenticated the record of trial “because of absence of the military judge,” and served it on the defense counsel. Absent objection from the defense counsel, the (Fidell’s CAAF Rules Guide) CAAF held that this was insubstantial or non-prejudicial.
- If more than one MJ, each must authenticate his portion. United States v. Martinez , 27 M.J.730 (A.C.M.R. 1988).