In addition to resources that we offer to you and to anyone facing a potentially lengthy investigation about taking care of yourself and resiliency, we want to take this opportunity to discuss with you some of the key events that will likely be taking place. Some of these events occur sooner rather than later. And many of these events represent decisions you will need to make. For an overview of the UCMJ Legal Process, please review this webpage.
Investigation
“How long will the investigation last?” is a question we hear often. We do our best to answer this question here.
Is there Probable Cause in Your Investigation?
After an investigation occurs, the end of the investigation signals a key decision by law enforcement known as titling or indexing. This is a probable cause determination based on the evidence they considered during the investigation. For more information about Titling, please read this blog post.
Because most cases receive a probable cause opinion, there is a pressure to prosecute a high number of the cases.
If charging occurs, this is known as Preferral. To know what you should expect when Preferral occurs, please review this page.
Soon after Preferral, if your case is proceeding to a General Court-Martial, you will next be notified about the date for your Article 32(b) Preliminary Hearing. One of the decisions you and your counsel will have to face is whether or not you should waive your Article 32(b) Preliminary Hearing. There are several factors that weigh on this decision. For more information about waiving or not waiving your Article 32(b) Preliminary Hearing, please review this blog post and this blog post.
For more information about the purpose of an Article 32(b) Preliminary Hearing and the rights that you have at this hearing, please review this blog post.
After the Article 32(b) Preliminary Hearing Officer writes up the report, it will be forwarded through your chain of command for their review and to recommend what should happen to the charges. In most instances, cases are forwarded from the O-6 level commander to the base commander with a request to refer the case to a court-martial.
The next event you should anticipate is known as Referral. Referral occurs when the base commander officially sends the charges (allegations against you) to a court-martial. Once referral occurs, a military judge will be in charge of the timeline for your case.
For more information about Referral, please review this page.
After Referral occurs, you should expect to be called into the legal office or your commander’s office to receive a copy of the Referred charge sheet. In most instances, this charge sheet is identical to the one you received at Preferral. Please understand that it is required that you be informed of precisely which charges have been forwarded to court for trial.
The next event that will occur is that you will appear for Arraignment in front of a military judge. We have provided the script you should expect to follow along with during your arraignment. For more information about what to expect at your arraignment, please review this page.
Just prior to or very soon after your arraignment, the military judge will issue the Pretrial Order, which outlines all of the deadlines your attorney and the prosecuting attorney must meet in order to keep the trial on schedule. The Pretrial Order will also list any hearings that will occur prior to trial and the dates for your trial. For more information about the Pretrial Order and to view a sample Pretrial Order, please review this page.
One of the more significant deadlines is the suspense to submit motions. Motions are written documents that ask the Court to give a favorable ruling, whether to exclude evidence, to include other evidence, to compel the government to produce witnesses, to compel expert assistance, or other favorable action. For more information about Motions, please read this information.
Trial takes a great deal of preparation by you and by your trial team. You will need to help your team by putting together a list of potential fact witnesses to help you defend your case and a list of potential character witnesses who may be called to testify or called upon to write memoranda in support. You’ll also be given a lengthy List of awards, evaluations, and accomplishments to assemble into matters for any potential sentencing that takes place. For more details about what you should be gathering, please review this article.
A critical decision you must make is your Forum Selection; this means by what kind of court you decide will sit in judgment of you. For the guilt-innocence / merits phase, you can choose to be judged by a military judge alone or you may elect to be tried by a panel (jury). If you are an enlisted person, you may also request that your panel be composed of at least 1/3 enlisted members but be advised that no enlisted person can come from your same company-sized unit. In most cases, you can also opt to have a judge determine your sentence even if you chose a panel to decide your guilt or innocence. For information about the choices you have, please review this page.
One of the other important decisions you’ll need to make is whether to testify in your own defense during the guilt-innocence phase of the trial known as the merits. For information on this critical decision, please review this blog post.
If there is a Sentencing phase of your trial, it occurs immediately after the verdict is announced in your case, not weeks or even months later like you sometimes see in the civilian world. During the sentencing phase, you have another opportunity to address the judge or jury (panel). In this phase, you have three choices: to testify under oath, to remain silent, or to provide an unsworn statement. For information on what information to include when planning an unsworn statement, please see this post.
For more information about the kinds of documentary evidence you can provide for consideration on your sentencing, please see this blog.