How Do Speedy Trial Rights Apply in the Military Justice System?
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Three protections run side by side. R.C.M. 707 requires arraignment within 120 days after the earlier of preferral, certain pretrial restraint, or entry on active duty, excluding approved delays. Article 10 applies when the accused is in arrest or confinement before trial and requires “immediate steps” to try the person or dismiss the charges and release the person; CAAF reads it to require reasonable diligence, and it reaches only the charges tied to the confinement. The Sixth Amendment applies to every accused through the four Barker v. Wingo factors. Meeting the 120-day rule does not show that Article 10 was satisfied.
The three protections
| Protection | When it applies | What it requires | Remedy |
|---|---|---|---|
| R.C.M. 707 | Every accused, from the earlier of preferral, restraint under R.C.M. 304(a)(2)-(4), or entry on active duty | Arraignment within 120 days, less excludable delay | Dismissal, with or without prejudice (R.C.M. 707(d)) |
| Article 10 | Accused in pretrial arrest or confinement, for the charges tied to it | Immediate steps to inform the person of the offense and to try the person or dismiss and release; reasonable diligence | Dismissal |
| Sixth Amendment | Every accused | Balancing of length, reasons, assertion of the right, and prejudice | Dismissal with prejudice (R.C.M. 707(d)(1)) |
R.C.M. 707: the 120-day rule
Start and finish. “The accused shall be brought to trial within 120 days after the earlier of” preferral, imposition of restraint under R.C.M. 304(a)(2)-(4), or entry on active duty under R.C.M. 204 (R.C.M. 707(a)). The starting date does not count; the date the accused is brought to trial does, and “An accused is brought to trial within the meaning of this rule at the time of arraignment” (R.C.M. 707(b)(1)); what follows arraignment is laid out in the structure and sequence of a court-martial trial. When charges are preferred at different times, each charge has its own date (R.C.M. 707(b)(2)).
Dismissal or mistrial. A new 120-day period begins:
- for an accused under restraint under R.C.M. 304(a)(2)-(4) at the time, on the date of the dismissal or mistrial;
- for an accused not under restraint, on the earliest of the date charges are preferred anew, the date restraint is imposed, or, for a mistrial without dismissal or repreferral, the date of the mistrial;
- but if charges were dismissed “for an improper purpose or for subterfuge,” the original period keeps running (R.C.M. 707(b)(3)(A)).
CAAF’s digest records that if charges are merely withdrawn and not dismissed, the clock continues to run (United States v. Leahr, 73 M.J. 364; United States v. Guyton, 82 M.J. 146).
Excludable delay. Periods of appellate stays, unauthorized absence of the accused, hospitalization for incompetence, or other custody of the Attorney General are excluded, along with “All other pretrial delays approved by a military judge or the convening authority”. Before referral, delay requests go to the convening authority (which may delegate to the Article 32 hearing officer); after referral, to the military judge (R.C.M. 707(c)). A defense-caused delay is excluded only when approved in this way.
Remedy. “A failure to comply with this rule will result in dismissal of the affected charges”, or, in a sentence-only rehearing, sentence relief. Dismissal may be with or without prejudice, considering the seriousness of the offense, the circumstances leading to dismissal, the impact of reprosecution on the administration of justice, and prejudice to the accused; it must be with prejudice where the constitutional right to a speedy trial was violated (R.C.M. 707(d)(1)).
Article 10: the confined accused
“When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken (A) to inform the person of the specific offense of which the person is accused; and (B) to try the person or to dismiss the charges and release the person” (Article 10(b)(1)). Pretrial confinement procedure itself is covered in pretrial confinement and restraint options. As summarized in CAAF’s digest:
- Article 10 “does not demand constant motion but does impose on the government the standard of reasonable diligence in bringing the charges to trial”, and courts apply the Barker factors to judge that diligence.
- Article 10 “applies only to those charges for which an accused is arrested or confined”; other charges rely on R.C.M. 707 and the Sixth Amendment, and the confinement order shows which charges are connected (United States v. Cooley, 75 M.J. 247).
- Meeting R.C.M. 707 is not proof of Article 10 diligence: “the fact that a prosecution meets the 120-day rule of RCM 707 does not directly or indirectly demonstrate that the government moved to trial with reasonable diligence as required by Article 10”.
- In Cooley, CAAF found an Article 10 violation where the record did not support the military judge’s findings that the government had shown due diligence between the first dismissal of charges and trial; a belated additional charge that caused 135 more days of delay weighed heavily against the government. CAAF also held that pretrial confinement cannot serve as per se prejudice.
The Sixth Amendment
Courts weigh the four Barker v. Wingo factors: the length of the delay, the reasons for it, whether the accused demanded a speedy trial, and prejudice to the accused. As CAAF’s digest puts it for Article 10, after listing the four Barker factors, “none of these factors alone are a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial”. A constitutional violation requires dismissal with prejudice (R.C.M. 707(d)(1)).
Counting to 120 (hypothetical)
Charges are preferred on day 0 against an accused who is not restrained, the convening authority approves a 30-day defense continuance, and arraignment takes place on day 140. With 30 days excluded, 110 days count, so R.C.M. 707 is met. If the same accused had instead been placed in pretrial confinement on day 0, R.C.M. 707 would start from the confinement date, and Article 10 would separately ask whether the government moved with reasonable diligence throughout; the 110-day count would not answer that question.
Sources
- 10 U.S.C. § 810, Article 10, Restraint of persons charged (Cornell LII)
- CAAF Digest, Speedy Trial: Rule for Courts-Martial 707 (CAAF)
- CAAF Digest, Speedy Trial: Article 10 (CAAF)
- CAAF Digest, Speedy Trial: Sixth Amendment Right to a Speedy Trial (CAAF)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 707
This article is general information about military law, not legal advice for any individual case.