Post-trial R.C.M. 917 motions

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).

Rule 29. Motion for a Judgment of Acquittal

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.

Consistent with our conclusion in Brickey and in other cases that Congress intended for a military judge to have the power to conduct post-trial proceedings until authentication of the record has taken place, we are convinced that if, before authenticating the record of trial, a military [**15] judge becomes aware of an error which has prejudiced the rights of the accused — whether this error involves jury misconduct, misleading instructions, or insufficient evidence — he may take remedial action on behalf of the accused without awaiting an order therefor by an appellate court. This result is predicated on our interpretation of congressional intent. That intent was implicit in the establishment of the position and title of "military judge" by the Military Justice Act of 1968.

Unted States v. Griffith, 27 M.J. 42, 47 (C.M.A. 1988).

The military judge here may not have fully recognized that, even after the trial had ended, he was empowered to set aside the findings of guilty if it was apparent to him that the evidence was legally insufficient.

Unted States v. Griffith, 27 M.J. 42, 48 (C.M.A. 1988). See also, United States v. Scaff, 29 M.J. 60 (C.M.A. 1989); R.C.M. 1102.

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n.1: ". . . procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, . . ."