I was ruminating on the Partington issue, and I was reading the recent NMCCA’s decisions, and I came across this.

Federal courts, to include the Court of Appeals for the Armed Forces, have long held that a defective specification challenged for the first time on appeal will be liberally construed in favor of its validity. See United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986).

Now R.C.M. 907(b)(1)(B), clearly states that F2SO is not waived.  But it might be a good idea to consider NMCCA’s view on the “construction” issue.  Perhaps the best point to raise the issue then is after the prosecution rests or during the discussion on instructions if it’s a members case, or before the judge makes findings if its an MJA.

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One response to “F2SO”

  1. Peter E. Brownback III says:

    I am confused by your advice. If I were asked, I would say that the motion to dismiss should be made after the MJ or the panel has announced sentence. Why give the prosecution any chance to reopen or give the MJ a chance to “reread” or “rewrite” the spec?

    If I were the DC, when the MJ asked “Is there anything further before I release the panel?” or “Is there anything further before I recess?”, I would hand her a simple written motion. Let the MJ handle it from there – the record is complete and you’ve made a timely motion.