Factual Predicate for Plea

False Accusations of Sexual Assault in the Military & Why Are They So Common?

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Overview of the factual predicate for plea – appellate review and the “Substantial Basis” test:

  1. In reviewing a military judge’s acceptance of a plea under the abuse of discretion standard, appellate courts apply a “substantial basis” test: Does the record as a whole show a substantial basis in law
    or fact for questioning the guilty plea?
    United States v. Inabinette
    , 66 M.J. 320 (C.A.A.F. 2008) (1) Questions of Fact: “The standard for reviewing a military judge’s decision to accept a plea of guilty is an abuse of discretion.” A military judge abuses his discretion “if he accepts a guilty plea without an adequate factual basis to support the plea. (a) Example of “substantial basis in fact”: where the factual predicate of the guilty plea falls short. (2) Questions of Law: “The military judge’s determinations of questions of law arising during the plea inquiry are reviewed de novo.” (a) Example of “substantial basis” in law: an accused who knowingly admitted the facts necessary to prove he or she met all the elements of an offense, but was not advised of an available defense. (3) Military Judge Must Resolve Potential Defenses (a) If any potential defense is raised by the accused or by any other matter presented, the military judge should explain such a defense to the accused and should not accept the plea unless the accused admits facts which negate the defense. RCM 910 Discussion. (b) If a potential defense is raised after findings are entered, then the military judge must reopen the inquiry. RCM 910(h)(2). (4)

    United States v. Moglia
    , 3 M.J. 216 (C.M.A. 1977). Accused need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea. (a) Nevertheless the accused must be convinced of, and able to describe all the facts necessary to establish guilt. See also RCM 910(e) Discussion; United States v. Wiles, 30 M.J. 1097 (N.M.C.M.R. 1989).
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