INTRODUCTION TO MILITARY LAW - PowerPoint PPT Presentation

1 / 22
About This Presentation
Title:

INTRODUCTION TO MILITARY LAW

Description:

Receipt by SCMA or delegate tolls statute of limitations ... Mendacity. Both sides have opportunity to argue. Sentencing recommendation ... – PowerPoint PPT presentation

Number of Views:62
Avg rating:3.0/5.0
Slides: 23
Provided by: lawUnd5
Category:

less

Transcript and Presenter's Notes

Title: INTRODUCTION TO MILITARY LAW


1
INTRODUCTION TO MILITARY LAW
WEEK 11 Courts-Martial
2
This Week
  • Types of courts-martial
  • Process
  • Sentencing
  • Cats and dogs
  • Members
  • Pretrial agreements
  • Immunity
  • Post Trial and Appellate Processing

3
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

4
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

5
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

6
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

7
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

8
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

9
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

10
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?

11
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

12
  • 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

13
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

14
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

15
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

16
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

17
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

18
  • 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

19
  • 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

20
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

21
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

22
  • This Week
  • Court-martial overview
  • Types
  • Procedures
  • Appellate review
  • Next Week
  • Legal Assistance/Claims
Write a Comment
User Comments (0)
About PowerShow.com