Gonzalez & Waddington – Attorneys at Law

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Violation of a lawful general regulation / order. UCMJ Art. 92(1)

Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer

Basic rules and procedures

  1. Deliberations. RCM 921(a) and (b).
  2. Only members present. RCM 921(a).
  3. No superiority in rank used to influence other members. RCM 921(a).
  4. May request reopening of courtto have record read back or for introduction of additional evidence. RCM 921(b).
  5. Voting. RCM 921(c).
  6. By secret written ballot, with all members voting.
  7. Guilty only if at least 2/3 vote for guilty.
  8. Fewer than 2/3 vote for guilty, then finding of not guilty results.
  9. Special procedure to find accused not guilty by reason of lack of mental responsibility.
  10. Procedure. RCM 921(c)(6).


  1. United States v. Fitzgerald, 44 M.J. 434 (1996). Two specifications each alleged multiple discrete acts of sodomy and indecent acts. As to discrete acts alleged in specifications, MJ suggested straw vote on specification as charged, then treating individual discrete acts separately as lesser included offenses. Instructions likely inured to benefit of accused, and brought no objection from counsel. Court found waiver by defense, no plain error, and affirmed findings and sentence.
  2. United States v. Lawson, 16 M.J. 38 (C.M.A. 1983). Straw polls, i.e., informal non- binding votes, are not specifically prohibited, but are discouraged. Cannot be used directly or indirectly to allow superiority of rank to influence opinion.

Representing Guilty Clients: How do defense lawyers sleep at night?

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