An arraignment is the first formal appearance a military accused makes in a court-martial.
The arraignment must occur at least 120 days after the preferral of charges exclusive of any defense delays. This means that if the defense requested two weeks of delay to hold the Article 32(b) Preliminary Hearing, then those 14 days are subtracted from the 120-day calculation. This is known as the right to a speedy trial. The right to speedy trial for a military accused has both constitutional origins and military specific rights.
An arraignment becomes a conversation between the military judge and the military accused to ensure that the accused person is aware of his rights and to capture some of the decisions the accused must make about his court-martial.
RIGHT TO COUNSEL
For instance, the first right a military judge will explain to a military accused is about his right to counsel, that is what attorney or attorneys he chooses to represent him. After explaining his right to free military counsel and his right to hire private civilian counsel and to request a specific free military lawyer, the accused must make a verbal election to the judge to tell the judge which attorney or attorneys he chooses.
If for any reason one of those attorneys is not present, the arraignment cannot continue unless the military accused agrees to proceeding without that person present.
RIGHT TO FORUM
After the right to counsel, the military judge will explain to the accused their rights to forum selection. Forum selection means by whom the person chooses to be judged. Those choices include the military judge alone or a military panel (called a jury in the civilian system). If the accused person is enlisted, and the person wants a panel, an enlisted accused has the right to request that at least 1/3 of their panel is composed of enlisted members. Understand that by virtue of Article 25 UCMJ criteria, these enlisted personnel will be very senior, and are typically E-8s and E-9s.
In some jurisdictions, the military judge will allow your attorney to defer (delay) your choice of forum. The Pretrial Order designates a forum selection deadline, and some judges will permit the counsel to delay that election until the deadline on the order. In several jurisdictions, the military judge will insist on an election but will allow the person to change their election by the outlined suspense.
ENTRY OF PLEAS
Another event that occurs at an arraignment is the entry of pleas. This does not mean that you are pleading guilty – it is an announcement of whether you are pleading guilty, not guilty, or guilty to some offenses and not guilty to others. In most jurisdictions the judge will allow you to defer (delay) the formal entry of pleas because there are significant legal consequences to this act. For instance, a military accused can waive certain motions (written requests for relief from the judge about evidence or the offenses) if the motions are not filed before the entry of pleas. A judge can find “good cause” for filing a late motion in some cases, but it is never a good idea to enter pleas at an arraignment unless required to do so by the judge.
READING OF THE CHARGES
Another event that can occur during an arraignment is the reading aloud of the offenses. In almost all cases, the attorney will waive that reading on behalf of their client.
CONSEQUENCES OF AN ARRAIGNMENT
At the very end of the arraignment session, the military judge will explain to the military accused that it is important to keep their command and their attorney apprised of their whereabouts because if they “voluntarily absent” themselves from future sessions of the court, the trial can continue without them. Yes, even a sentencing session. Please take no offense at the idea that you would absent yourself from the military (it is not a good idea); the judge is required to give this advice of every military accused in every case – it is not a denouncement of you personally.
At the end of the session the judge may ask if either side has anything else to put on the record, and if they do not, the judge may close out by stating the next scheduled date for the next session. Otherwise, the judge may simply state that the Pretrial Order will be forthcoming.
While an arraignment can feel very stressful because of its formality, typically they are very ministerial and always follow a script. Your attorney can provide you with a script and will outline where you are required to speak, to stand, and when your attorney will speak for you.
The uniform for arraignments varies by jurisdiction and service; be sure to get the most up-to-date guidance from your uniformed counsel about what you are required to wear. In some services (USMC and Navy), your counsel will also be required to read aloud a list of your awards and decorations so be sure to send a copy and even bring a copy with you to the arraignment in case they forget.
The location of the arraignment will be in a military courtroom, and your counsel will help you to find it. Ultimately, it is your command’s responsibility to ensure you are there at the right time and place. Do not be surprised if the command designates escorts to take you to and from the arraignment. This happens as a matter of course and is not a violation of your rights. Comply with their lawful orders. If you have concerns about any specifics, follow the order and then follow up with your attorney.