Plea withdrawal based on prosecutorial bad faith before sentencing requires meeting the “fair and just reason” standard under RCM 910(h), with bad faith allegations receiving serious consideration. Examples of prosecutorial bad faith include breaching plea agreements, misrepresenting evidence during negotiations, or vindictive actions after plea entry. The military judge must balance plea finality interests against fundamental fairness when prosecutors act improperly.
Timing matters significantly – pre-sentencing withdrawal requests receive more liberal consideration than post-sentencing motions. The accused must present specific evidence of bad faith beyond mere dissatisfaction with prosecution positions. Documentation of plea negotiations, email communications, or witness testimony about prosecutorial conduct supports withdrawal requests. Pattern evidence of prosecution misconduct strengthens individual incident claims.
Remedies depend on bad faith severity and prejudice to accused. Options include permitting withdrawal, enforcing original plea terms, or dismissing charges in extreme cases. Military judges may conduct evidentiary hearings exploring bad faith allegations before ruling. The government bears responsibility for prosecutor conduct, potentially losing benefit of plea agreements due to trial counsel misconduct. The balance protects plea agreement sanctity while preventing prosecutorial manipulation of accused persons who surrendered trial rights based on good faith expectations.