TRIAL STAGES: Pretrial: Pretrial Restraint


United States v. Mack, 65 M.J. 108 (a servicemember facing criminal charges may be subjected to various forms of pretrial restraint pending court-martial, including confinement, arrest, restriction, or conditions on liberty). 

(a person accused of a crime retains the presumption of innocence and may not be punished pending trial; if the conditions of pretrial restraint are more rigorous than necessary to ensure the presence of an accused at trial or to prevent additional misconduct, the accused may receive credit against the adjudged sentence).



United States v. Christian, 63 M.J. 205 (revocation of off-post privileges is not restriction tantamount to confinement).

United States v. Regan, 62 M.J. 299 (the procedural protections or the credit provided by RCM 305 in connection with pretrial confinement apply to restriction tantamount to confinement only when the conditions and constraints of that restriction constitute physical restraint, the essential characteristic of confinement; to come within the scope of RCM 305, the conditions or terms of the restriction must constitute physical restraint depriving an accused of his freedom; thus, restriction tantamount to confinement does not necessarily trigger the application of RCM 305). 



United States v. Rendon, 58 MJ 221 (both "apprehension" and "custody" are terms of art in military law; apprehension is the taking of a person into custody; custody may include physical restraint, albeit temporary; all commissioned, warrant, petty, and noncommissioned officers may take a person into custody pursuant to RCM 302(b)(2); but only a commissioned officer may order an enlisted person into pretrial restraint and only a commanding officer may order a civilian or officer into pretrial restraint; pretrial confinement is a form of pretrial restraint).

(military apprehension, custody, and pretrial confinement involve physical restraint; absent some military necessity requiring a different rule, Fourth Amendment considerations apply to these forms of restraint; however, CAAF finds no basis upon which to extend the Fourth Amendment and other procedural protections embodied in R.C.M. 305 to pretrial restraint, including restriction tantamount to confinement, that do not include physical restraint).


United States v. Smith, 53 MJ 168 (placement in administrative restraint can be justified on the basis of ensuring the servicemember’s safety under the military purpose justification of RCM 304(h)).

(military judge correctly found that pretrial conditions imposed upon appellant did not amount to pretrial punishment:  (1) appellant had stolen from others in his dormitory, and restricting his unescorted access was appropriate; (2) other restrictions imposed upon appellant applied equally to each individual housed in a special squadron, whether there for disciplinary or administrative purposes; (3) appellant’s dress was a result of appellant’s own misunderstanding and not an order to dress distinctively; (4) there was legitimate concern for appellant’s safety; and (5) the command was concerned about the possibility of appellant committing further thefts from other cadets).

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