Authentication by Military Judge in General Court-Martial

Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law

 

Overview of the authentication by military judge in GCM or Special CM in post-trial processes:

Authentication IAW service regulations for SPCM (same as GCM in AR 27-10). Substitute authentication rules provided ( Cruz-Rijos standard).

1. 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).
2. TC may authenticate the ROT only if the military judge is genuinely unavailable for a lengthy period of time.
   1. 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).
   2. 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).
   3. 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).
   4. 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).
   5. 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 Library of Congress: Military Law.

If more than one MJ, each must authenticate his portion. United States v. Martinez , 27 M.J.730 (A.C.M.R. 1988).
TC shall cause a copy of ROT to be served on the accused after authentication. Substitute service rules provided. RCM 1104(b).

1. UCMJ, Article 54(c) requires such service as soon as the ROT is authenticated.
2. In United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976), the CMA added the requirement that this be done well before CA takes action.
3. Substitute service on the DC is a permissible alternative. See United States v. Derksen, 24 M.J. 818 (A.C.M.R. 1987).

What to do if the authenticated ROT is lost? Produce a new ROT for authentication.

1. United States v. Garcia, 37 M.J. 621 (A.C.M.R. 1993). Holding that SJA-prepared certification that all allied documents were true copies of originals was sufficient substitute for original documents.
2. United States v. Godbee, 67 M.J. 532 (N-M. Ct. Crim. App. 2008). The original ROT was lost. The copy of the ROT submitted for appellate review was internally consistent and contained all numbered pages and exhibits. The ROT also contained a copy of the authentication page signed by the military judge. As a result, the NMCCA applies a presumption of regularity to its creation, authentication, and distribution. Harmless error.

Rules for correcting an authenticated ROT. Certificate of correction process. Correction to make the ROT conform to the actual proceedings. RCM 1104(d).

The authenticated ROT will be forwarded to the CA for action or referred to the SJA for a recommendation before such action. SJA recommendation required prior to taking action in a GCM or SPCM in which a punitive discharge or confinement for one year was adjudged. RCM 1106(a).

If defense time for errata is unreasonable, MJ can authenticate without errata. RCM 1103(i)(1)(B).