Using this form is required by U.S. v. Miller, 63 M.J. 452 (C.A.A.F. 2006) and DODI 1325.7.
Instructions for Using the Sex Offender Registration Advice Form
Prior to trial, if the accused is charged with any offense that is listed in the enclosure to the form, have the accused read the form, answer any questions, and have the accused sign it. Counsel will also sign and provide the accused a copy for his records.
If the accused intends to plead guilty to any offense that may require sexual offender registration, it is essential this form be executed before the offer to plead guilty is submitted so the accused knows the consequences of his plea. Because of the impact of sex offender registration, it could have a great impact on the decision whether to plead guilty to a qualifying offense. If there is no pretrial agreement, the advice must be executed before the plea is entered.
Have a signed copy of the form available at trial to mark as an Appellate Exhibit. The Military Judge’s Benchbook includes an inquiry whether the accused has been so advised.
Because state and territorial laws are so diverse, and where the accused may reside, carry on a vocation, or go to school is uncertain, trial defense counsel should be very cautious on giving advice that an offense is not covered or the exact procedures to register other than “check with local authorities for registration requirements.” In other words, even if the offense is not listed on the enclosure, a State or territory may still require sex offender registration. Counsel should not guarantee what a state law may require because some requirements are unpublished and the potential registrant must check with state authorities first. The Coast Guard Court of Criminal Appeals wrote about the dangers of telling a client he would not have to register as a sex offender only to later discover a State had registration requirements that were not generally known despite counsel’s researching the issue. See United States v. Molina, 68 MJ 532 (C.G.C.C.A. 2009).
Trial Defense Counsel may wish to have the following article available as a list of state points of contact: Sex Offender Laws and the Uniform Code of Military Justice: A Primer, The Army Lawyer, August 2009, (hosted on the DCAP Portal in the Army Lawyer articles section).
Also, remember to ensure the accused is advised in writing of his post-trial and appellate rights.
Disposition of original and copies. (This includes both the signed form and the enclosure.)
- Original: For inclusion into record of trial.
- Copy to accused.
- Copy for defense counsel case file.
This form, and the post-trial and appellate rights advisement form, are on the DCAP Portal in the DC101 – Quick Links References (Post-Trial).
References: DODI 1325.7; 42 USC § 16912, 14071, 16991; 18 USC § 2250; U.S. v. Miller, 63 M.J. 452 (C.A.A.F., 2006); Chapter 24, AR 27-10; and DoD Memorandum “Sexual Offense Reporting Requirements,” dated Nov 16, 2009.