INTRODUCTION TO MILITARY LAW

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INTRODUCTION TO MILITARY LAW
WEEK 11 Courts-Martial
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This Week

• Types of courts-martial
• Process
• Sentencing
• Cats and dogs
• Members
• Pretrial agreements
• Immunity
• Post Trial and Appellate Processing

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Courts-Martial

• Chart
• Preferral first formal step in initiating a
  court-martial
• Starts the clock
• Receipt by SCMA or delegate tolls statute of
  limitations
• Forwarding w/advice and recommendations to SCMA
• Convening authority person able to send a case
  to court-martial
• Options
• Dismiss
• Lesser forum
• Refer to Summary or Special
• Forward to superior commander (GCMCA)?
• Referral
• Pre-Requisite to General is Article 32 Hearing
  and written pretrial advice from JAG
• Trial

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Types of Courts-Martial

• Summary
• Minor offenses
• Article 15 turndowns
• Voluntary Forum
• Special
• 1 Year, BCD, 2/3 FF x 12, E-1, Plus
• Misdemeanor?
• General
• Aggregate of statutory max for each offense
  charges, including death penalty
• Felony?
• Article 32 required

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Article 32

• Purpose
• Adversarial in nature
• Investigating Officer
• Impartiality quasi judicial usually JAG
• Appointed by CA
• Rights of Accused
• MRE dont apply but for privileges
• Hearsay admissible
• Doesnt rule on objections but will note for the
  record
• Alternatives to testimony
• Subpoena?
• Report
• Prima facie case
• Witness credibility
• Evidentiary Issues
• Form of charges
• Recommendations

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Creating the court

• Done by CA
• Decision to refer
• Member selection
• Article 25 requirements
• Officer v. Enlisted members
• Minimum panel size Court Composition is judge
  and members
• 3/5 or Judge Alone
• Optimum numbers conviction by 2/3 vote
• Avoid panel stacking but not blind selection
• No members in Summary Court Summary Court
  officer
• Challenges and excusals
• Court-martial created by convening order
  (special order)?
• Designates type of court-martial and details
  members

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Referral

• Done by CA personnally
• Reasonable grounds to belief offense triable by
  court-martial has been committed by accused and
  specification alleges an offense
• 3/5 day rule
• Withdrawal of charges

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Pretrial Agreements (PTA)?

• Contract between Accused and CA
• Offer
• Appendix
• In writing no sub rosa agreements
• Procedure
• What may not be negotiated away
• Violate public policy/fairness?
• Withdrawal/cancellation
• Disposition Agreements

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Other Stuff

• Discharge/Resignation in lieu of court-martial
• Speedy Trial
• 6th Amendment - Constitutional
• Article 10 - Statutory
• RCM 707 regulatory
• Exlusions
• CA or MJ approved delays
• Remedy dismissal usually without prejudice
• Witnesses
• Witnesses at government expense equal
  opportunity
• Civilian/Military witnesses
• Admin hold
• Subpoena
• Immunity
• Granted only by GCMCA
• De Facto
• Scope Military and Civilian
• Testimonial/Transactional

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Trial Process

• Criminal trial with military rules
• Script
• Military Judges Benchbook Instructions and
  script
• Member Selection
• Voire Dire/Challenges
• Required number
• Opening Statements
• Presentation of Evidence
• Rebuttal
• Argument
• Rebuttal
• Instructions
• General
• Special
• Findings Deliberation 2/3
• Announcement of Sentence
• Guilty pleas?

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Sentencing

• By who?
• Factfinder in litigated
• Election in guilty plea
• Adversarial regardless of pleas
• RCM and MRE apply
• Accused can relax MRE to allow hearsay
• RCM 1001 governs relevancy
• Aggravating/Mitigating evidence
• MRE 403 balancing applies
• Evidence from findings can be considered in
  sentencing
• Procedure similar to findings
• Govt case/defense case/rebuttal/argument
• Witnesses still at Govt expense
• Subpoenas apply
• 6th Amendment Confrontation Clause doesnt apply
  to presentencing procedure
• 5th Amendment due process does apply

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• Prosecution case
• Service data/personal data/character of service
• Other personnel records/disciplinary history
• Provided to opposing counsel
• Accused had opportunity to respond
• Kept in accordance with regulation
• Evidence of prior conviction
• Evidence in Aggravation
• directly relating to or resulting from offense
• Mission/unit/victim/family/community impact
• Facts and circumstances surrounding the offense
• Expert testimony regarding impact on victim
• Statements made by Accused during guilty plea and
  at other times
• Evidence of rehabilitation potential
• Extent of testimony limited
• Expert opinion regarding rehabilitation potential
• Not admissible
• Specific sentence recommendation or
  appropriateness of punitive discharge
• Rule of Completeness

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Defense Case

• Relax the rules
• Matters in Extenuation (Explanation)?
• Matters in Mitigation (Mitigate punishment)?
• Often presented through documents
• Many times defense authored trial counsel can
  interview and call in person if desired
• Witnesses factual/opinion/expert
• Sworn or Unsworn testimony by Accused
• Unsworn right of allocution is virtually
  unrestricted while not wholly unconstrained
• Trial counsel may rebut factual assertions

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Instructions and Argument

• Provided to members by military judge
• Required
• Optional
• Requested
• Mendacity
• Both sides have opportunity to argue
• Sentencing recommendation
• Basis for recommendation
• Principles of sentencing deterrence (general
  and specific), protection (society and victim),
  rehabilitation, punishment, good order and
  discipline
• Cant comment on Accuseds failure to testify
• Comment on unsworn is proper lack of remorse,
  failure to accept responsibility

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Deliberations and Punishments

• Deliberations
• Open deliberations and discussion
• Members propose sentences
• Vote in order of severity (lenient first)?
• First sentence to receive 2/3 vote is it
• Punishments
• No punishment
• Death 13 offenses/GCM only/procedural
  requirements/unanimous vote
• Deprivation of Liberty
• Deprivation of Pay
• Automatic forfeitures
• Involuntary servitude
• Punitive discharge
• Reduction in rank (enlisted only)?
• Officer grade determinations

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Maximum Sentences

• Per UCMJ/Jurisdictional Limit
• Aggregate of offenses found guilty of or
  jurisdictional limit
• Multiplicity
• Findings
• Necessarily included/Elements test
• Based in double jeopardy clause of Constitution
• Sentencing
• Elements test also
• Compare to unreasonable multiplication of charges
• Prosecutors pile on charges for what was
  essentially one transaction
• Fairness considerations but a legal standard
• When do sentences take effect
• Confinement immediately
• BCD upon Appellate review
• All others, 14 days after sentence announced
  unless deferred by CA

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Post Trial Process

• Clemency Process Second Bite at the Apple
• Record completed, authenticated and served
• SJA review completed and served
• Contents
• 10 days to submit matters in clemency (including
  legal erros) to CA under RCM 1105 and respond to
  SJAR under RCM 1106
• SJAR Addendum completed
• List defense exhibits
• Remind CA MUST consider all written matters prior
  to taking action
• Respond to allegations of error
• If new matter must be reserved and another 10
  days allowed

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• Action by CA
• Same commander who convened must take action
  cant delegate
• Must consider
• Results of trial
• SJAR
• Written Clemency
• Optional
• Record of trial
• Personnel records
• Other matters
• Not required to review for legal erros or factual
  sufficiency
• Actions on Findings
• Not required to take action on findings by may do
  w/in discretion
• Approve findings as adjudged
• Set aside finding of guilty or change to guilty
  of LIO
• Dismiss a specification
• Order a rehearing

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• Action on Sentence
• Cant increase
• Approve all or part
• Disapprove all or part
• Mitigate
• Suspend
• Remit
• Completely with CA discretion
• Must modify if illegal sentence
• CA must give credit in action for unlawful
  pretrial confinement, etc

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Post-Trial Proceedings

• Proceeding in revision
• Post-Trial 39(a) session
• Dubay Hearing
• Fact Finding
• Ordered by appellate court
• Rehearing on Findings/Sentence
• CA can reconvene or if not practicable set
  aside the findings or sentence or both
• Who can order it?
• Limits
• Cant reconsider not guilty finding
• Cant increase severity of sentence

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Appellate Process

• Level of review determined by type of court and
  sentence approved
• Accused may waive/withdraw appellate review
• Review by JA under Article 63
• TJAG review
• Required
• Discretionary
• Review by Service Court
• Required Death, punitive discharge or more than
  1 year confinement and cases certified by TJAG
• Discretionary
• Interlocutory writs, appeals by government and
  petition for new trial
• Fact and law
• Factfinding power
• CAAF
• Required Death and TJAG certified review
• Discretionary review upon petition by accused
• No fact finding authority
• Writ of Certiorari to US Supreme Court
• Appellate counsel provided accused civilian at
  own expense

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• This Week
• Court-martial overview
• Types
• Procedures
• Appellate review
• Next Week
• Legal Assistance/Claims