Standards for Relief

At trial: Information which is so incomplete as to be misleading may result in a defective advice, necessitating appropriate relief. RCM 406(b) Discussion.

  • Appellate Review: Is the advice so “incomplete, ill considered, or misleading” as to a material matter that the convening authority might have made an erroneous referral?” United States v. Kemp , 7 MJ 760 (A.C.M.R. 1979).
    1. United States v. Murray , 25 MJ 445 (CMA 1988). Pretrial advice omitted a charge. Procedural error tested for prejudice, considering several factors: whether the charges were serious enough to warrant trial by general court-martial; whether they were supported by the evidence before referral; how the appellant pleaded; whether the appellant objected to the advice at trial; and whether the error was disclosed to the convening authority during the post-trial process
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