Just in – LOL

Just in over the transom from a very reliable colleague.

A TC told him that the defense is not allowed to have a copy of the SJA pretrial advice because it is a privileged communication.  Apparently the TC is not familiar with the rules – not uncommon.  I do wish they’d read that red paper covered book sometimes.  Strangely, R.C.M. 405(c) contains this language.

(c) Distribution. A copy of the advice of the staff judge advocate shall be provided to the defense if charges are referred to trial by general court-martial  (emphasis added).

It appears that the TC is also not familiar with the common military definition of “shall.”  I remember being told at OIS that when a senior officer says “shall” it means not discretion, and “may” allows some discretion.  But again for the TC’s benefit the Congress (and President) has kindly defined it in another rule.  The Discussion to R.C.M. 103 references 10 U. S. Code 801(28), which states:

(28) “Shall” is used in an imperative sense.

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