INVESTIGATIVE CONTROL – CIVILIANS OR MILITARY
As a preliminary matter, even if the investigation is being conducted by local civilian law enforcement, it does not mean that the case will be prosecuted by the local civilian prosecutor’s office. Often investigations are initiated off-post but are later turned over to military authorities; changing of investigative bodies occurs for many reasons. Sometimes the investigation is being conducted as part of collaboration by off-post and on-post authorities, though one will take the lead. No matter who takes the lead on the investigation, unless the case has an ironclad confession and there is videotape evidence of the “crime,” in most circumstances, the military will assume prosecution authority over the case. In many instances, if the alleged crime occurred off-post, the decision to prosecute by the military is often delayed because the civilian authorities have to first decline the case.
REQUEST FOR INTERVIEW
Once the military officially assumes decision-making over the allegation, if it has not already occurred yet, you should anticipate a request for interview. When you are the person suspected of having committed an offense, you become the subject of interrogation. NEVER WAIVE YOUR RIGHTS.
DECISION TO PROSECUTE
If the alleged crime occurred on a military installation, the military can prosecute the alleged offender, or in some rare cases, the U.S. Attorney’s office can prosecute the case in U.S. federal court. If the alleged crime occurred in the local civilian community, the local jurisdiction has the first option to prosecute or they can choose to give up jurisdiction to the military.
Military courts are able to prosecute military members who are currently serving on active duty, students of the service academies, reserve component while on inactive training, members of the National Guard when in Title 10 status, those who are serving prison sentences in military prison from previous military convictions, those who have retired from service, and other less common categories. See Article 2, UCMJ.
ALLEGATION OF SEXUAL ASSAULT
If you are accused of sexual assault, there is a high likelihood that the military will prosecute you. Even when the local civilian district attorneys conclude they do not have sufficient evidence, the military’s renewed emphasis on sexual assault prosecution leads them to prosecute cases even without physical evidence or other corroboration.
PREFERRAL OF CHARGES
The formal initiation of charging in the military process is known as the “preferral of charges” and signifies that a military member, usually the lowest level commander, has sworn an oath that they have either investigated the allegations on the charge sheet or have reviewed an investigation and believe that reasonable grounds exist to believe that the charges are true. The prosecution has 120 days from the initial preferral of charges until the accused person appears before a military judge for arraignment. The 120-day period does not include any requests for delays that are approved for the defense to prepare.
ARTICLE 32(b) HEARING
Recent amendments to the UCMJ have gravely diminished a military accused’s rights at the Article 32(b). Previously, the rule provided that no criminal charge may go to trial by general court-martial until a “thorough and impartial investigation” has been conducted. See RCM 405(a). This step WAS known as the “Article 32(b) investigation.” Currently, this step is known as the “preliminary hearing” and no longer has a requirement to be thorough.
This pretrial step is the military’s equivalent of a grand jury, but it differs from a civilian grand jury in many ways. First, there is not a group of people who are listening to and evaluating the prosecution’s evidence; in the military, only one investigating officer is appointed to evaluate the case. Usually this person is a field grade officer; in some commands, they care so little about these investigations that they appoint substandard officers as a form of punishment. Second, unlike the civilian world where a case cannot go forward without a vote from the grand jury (called an indictment), even if the military’s investigating officer recommends dismissal of charges, the command does not have to listen to the recommendation and can still prosecute anyway. Third, the opposite from a civilian grand jury, the prosecution does not get to keep its witnesses and evidence secret from the defense.
Recent changes to practice mandate that Judge Advocates (military lawyers) sit as the preliminary hearing officers when there are allegations of sexual assault.
Complainants of sexual assault ARE NOT REQUIRED TO TESTIFY at the preliminary hearing, even if they are in the military, and the prosecutor can submit his / her sworn statement to the hearing officer. Complainants of sexual assault can listen to every other witness’ live testimony and then decline to testify himself / herself. When the complaining witness declines to testify at the preliminary hearing, the defense loses the opportunity to thoroughly interview him / her under oath, which may greatly impact the ability to impeach him / her with a prior inconsistent statement.
Even with the current limitations on the Article 32(b) hearing, it is a critical stage in your case. Often it is the first opportunity a defense attorney has to meaningfully inquire into corroborating evidence that the government has. Some jurisdictions will still produce the complainant, and often defense attorneys do not know if there will be participation until the morning of the hearing. One cannot underestimate the importance of the chance to cross-examine the alleged victim(s) in your case. The kinds of questions that are posed and the way they are phrased could mean the difference in whether or not your case ever sees the inside of a courtroom. If your case does go forward, a detailed pretrial cross-examination of the alleged victim is often a paramount step in taking apart the government’s case. You may be considering the approach to “wait and see” how things go at the Article 32 before deciding to hire a civilian attorney. Because of how crucial the Article 32 is, this approach could prove irreversible to your case.
Each branch of service treats making a record of the Article 32(b) hearing differently; as a matter of course, prosecutions in the Army will prepare a summarized transcript of Article 32(b) testimony and will audio-record the testimony. The Air Force hearing officer is separately responsible for personally preparing a summarized transcript of the testimony. Neither the Navy nor the Marine Corps will prepare a summarized transcript of testimony; attorneys may request a summarized transcript but they are summarily denied, unless the case is a homicide. In other branches, a request for verbatim record (word for word) is answered on a case-by-case basis, and except in murder cases, are typically denied.
REFERRAL OF CHARGES TO COURT
The official stage whereby a charge sheet becomes an official court-martial is known as the “referral” of charges. Referral occurs when the highest competent authority, the General Court-Martial Convening Authority, after reviewing the allegation and Article 32(b) hearing report, decides to send it to court. After referral, the decision-making shifts from the highest commander to a military judge.
Once the military judge obtains control over a court-martial, he / she will set an order establishing deadlines for submission of various required documents, including mandatory disclosures by the prosecutors and a deadline to submit “motions” to the court. A “motion” is a formal written document that asks the court to take some favorable action that the written document requests. In some cases, motions request to exclude certain evidence; in other cases, motions request dismissal of charges for various reasons. Once the motion is filed, the other side has a set amount of days to file a written response, either conceding the request motion or challenging what was requested. Each side will have an opportunity to present evidence and oral argument on the motion; ultimately, the military judge will render a ruling as to each motion lodged. Motions practice is a crucial step to help “shape the battlefield” of your trial. Even if a motion is not granted, having filed it may prove critical if the case requires an appeal.
TRIAL BY COURT-MARTIAL
All trials by courts-martial are governed by the Military Rules of Evidence, the Rules for Courts-Martial, and certain local rules. Each trial is presided over by a military judge who is a military officer from the Judge Advocate General’s Corps of his or her respective branch and graduated from a short course on how to be a military judge. Judges vary in their courtroom and judicial experience.
Most trials last between two and five days, depending on the complexity of the allegations and evidence. Generally, the process of a members (jury) trial is initial instructions to the members, the voir dire process, challenges and excusals, opening statements, presentation of evidence, closing statements, and sentencing, as necessary. There is no separation in time between findings (the guilt-innocence phase) and the sentencing proceedings. The same entity (judge or jury) that decides guilt-innocence is the same entity that decides the sentence (punishment).
A general court-martial (GCM) is the highest level of court-martial under the UCMJ. A GCM is composed of a military judge and at least five jury members (known as panel members). The maximum punishment possible at a GCM will depend on the individual charges and will be the total punishment when adding each charge’s individual maximum punishment. Every case that will be a GCM will have a pretrial Article 32(b) hearing.
A special court-martial authorized to give a bad conduct discharge (BCD) is composed of a military judge with or without at least three jury members (known as panel members). No matter what the charges, at a special court-martial the maximum punishment allowed is reduction to E-1, forfeiture of 2/3 pay, confinement for 1 year, and a bad conduct discharge. A conviction at a special court-martial will translate to an actual federal conviction; it will depend on the state as to whether or not it is considered a felony conviction because in some states the criteria for a felony is if the person was facing more than one year. In other states, the line between felony and misdemeanor is drawn as a misdemeanor when the person was facing less than one year in confinement.
Prosecutors gain a huge tactical advantage by taking charges to a BCD-Special court-martial because they are not required to lay out their case as they are when they take cases to a general court-martial. The command can initiate the process of a special court-martial, known as preferral, and then send it officially to court, known as referral, on the SAME DAY. Your defense attorney may not even receive the full packet before having to try to articulate to the military judge about when they are ready for court. In most jurisdictions, military prosecutors outnumber military defense attorneys by nearly 2:1. Service of preferral at a BCD-Special court-martial should especially concern a military accused because defense attorneys find themselves far behind in knowledge and preparation than the prosecutor.
A summary court-martial is presided over by one commissioned officer to “promptly adjudicate minor offenses under a simple procedure.” See RCM 1301. Typically, a person who is subject to a summary court-martial is not represented by an attorney during the proceedings but is entitled to speak to an attorney for guidance, advice, and tactical preparation prior to the proceedings.
Generally, a conviction at a court-martial is not a reportable conviction. Punishment maximums vary by the rank of the accused person, but no person can be confined for longer than thirty days. Similar to non-judicial punishment, the accused person does not have to “accept” trial by summary court-martial and may demand trial by court-martial instead. If the accused person elects trial by court-martial, he does not get to choose which type of greater jurisdiction his case will be.
Most jurisdictions do not prefer charges to a summary court-martial, but rather will leverage a more serious level to obtain a guilty plea at a summary court-martial, often combined with a waiver to an administrative discharge (for an Other Than Honorable (OTH) discharge or at best a General discharge).
Even though the legal liability is much lower at a summary court-martial, the rules of evidence and the burden of proof are the same as that of any other court-martial. Experienced assistance can help preserve issues and mean the difference between a conviction or not.
If there is a conviction for any offense, and after the announcement of the sentence, service members can ask the commander who sent the case to court-martial (called referral) for relief, usually in the form of a lighter sentence or a request that forfeitures be deferred or provided instead to the member’s family. This post-trial request for relief is known as clemency, pursuant to R.C.M. 1105 and R.C.M. 1106, which include highlighting any legal errors that may have occurred during the trial. Once the commander makes a decision to give any clemency or not, the case is readied to forward for appeal.
The appellate process depends on the severity of the sentence. If the sentence includes more than 6 months (181 days or more) in confinement or a punitive discharge (a bad conduct discharge or dishonorable discharge for enlisted or a dismissal for officers), the case is automatically appealed to the next higher court. Each service branch has an intermediate level court known as the Court of Criminal Appeals. For the Army, it is the Army Court of Criminal Appeals, known by the acronym A.C.C.A. The Navy’s and the Marine Corps’ cases flow to the Navy-Marine Corps Court of Criminal Appeals, also called N.M.C.C.A. The Air Force cases are reviewed by the Air Force Court of Criminal Appeals, or A.F.C.C.A., and lastly the Coast Guard’s courts-martial receive scrutiny by the Coast Guard Court of Criminal Appeals, or the C.G.C.C.A.
Cases that receive review by one of these military intermediate courts of criminal review feed into the Court of Appeals for the Armed Forces, which serves as a kind of “supreme court” for the military. Lastly, the U.S. Supreme Court has jurisdiction to review military cases.
In the event that the court-martial sentence carries fewer than 181 days in confinement and no punitive discharge, there is no automatic appeal to any military appellate court or otherwise. Instead, the case is reviewed by the Office of the Judge Advocate General in each respective branch to determine legal sufficiency. When the OTJAG reviews a case, it provides far less scrutiny than with automatic appellate review. Even if a case does not receive an automatic appeal, a member can file a request to have the highest ranking military attorney from his branch certify one or more issues in their case to the intermediate appellate court; these requests are not often granted.