Military Justice

Military Justice

Agenda  Purpose

 Inspections

 Legal Sources

 Urinalysis

 Key Personnel

 Nonpunitive

 Jurisdiction

 Nonjudicial

 Command Influence

 Soldier’s Rights

 Rights Warning

 Art. 15 Hearing

 Search and Seizure

 Punishments

PURPOSES OF MILITARY JUSTICE  Promote Justice  Maintain Good Order and Discipline  Promote Efficiency and Effectiveness  Strengthen the National Security

LEGAL SOURCES OF MILITARY JUSTICE  U.S. Constitution

 Articles of War  Uniform Code of Military Justice  Manual for Courts-Martial, U.S. 1984  Local Regulations  Court Decisions  1SG  Legal Clerk  SJA

KEY PERSONNEL IN THE MILITARY JUSTICE SYSTEM  Commander  Staff Judge Advocate  Trial Counsel  Defense Counsel  Military Judge  Legal Specialists

UCMJ JURISDICTION Over the Person:  Active Duty Soldiers  Reserve Soldiers, certain times  U.S. Academy Cadets  National Guard in Federal Service  Others Over the Offense:  Concurrent Civilian Jurisdiction?  Worldwide Jurisdiction

UNLAWFUL COMMAND INFLUENCE A Superior Cannot:  Order a Subordinate to take specific action  Intimidate or Discourage a Witness  Reprimand or give unfavorable ratings for conduct as court or board member

IMPORTANCE OF PROPER COMMAND CONTROL  Personal Importance

 Discipline, Efficiency, and Integrity of the system

 Civilian Impressions and Reputation of the system

RIGHTS WARNING  Nature of the suspected offense  Right to remain silent  Any statement made can be used at trial  Right to consult an attorney prior to questioning and have attorney present during questioning  Right to representation at all critical stages

SEARCH AND SEIZURE Probable Cause: A reasonable belief that items connected with criminal conduct are located in a particular place or on a certain person.  Analyze “totality of circumstances”  What is where and when?  How do you know?  Why should I believe you?

NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ  Types of Article 15’s  Summarized:  No right to lawyer  Extra duties and restriction  Records not admissible at Court-martial  Formal:  Provides “formal” record  Significant punishment and rehab potential  Pay, reduction, extra duties, restriction  Right to consult with lawyer

NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ Any officer in command may impose Article 15 Limitations on Article 15 Authority: Superior commander cannot direct subordinate to issue Article 15 or impose punishment Superior commander may withhold all or partial Article 15 authority

ACCUSED’S RIGHTS AND OPTIONS Rights

Formal

Summarized

Art. 31B Warning

Yes

Yes

Demand Trial

Yes

Yes

Consult Lawyer

Yes

No

Open Hearing

Yes

No

Spokesperson

Yes

No

Have Witnesses

Yes

No

Appeal

Yes

No

ARTICLE 15 HEARING Purpose: Determine if soldier committed offense Standard: Proof beyond a reasonable doubt Persons present: Commanders option; usually: Accused 1SG/SGM Supervisory chain Commander’s actions: Consider evidence Decide guilt or innocence Impose punishment Explain right to appeal

ARTICLE 15 PUNISHMENTS  Reduction in Rank  Correctional Custody  Forfeiture of Pay  Extra Duty  Restriction  Reprimand/Admonition

SEARCHES NOT REQUIRING AUTHORIZATION  Consent search:  Person sets limits  Good insurance  Search incident to apprehension:  Reasonable Grounds must exist  Search person and area of immediate control  Exigent circumstances:  Evidence may be destroyed or removed  Common in cases involving cars and drugs  Administrative inspections

ADMINISTRATIVE INSPECTIONS  Commanders have the right and duty to inspect troops and equipment.  Primary Purpose is to ensure security, fitness, property accountability, or good order and discipline—NOT collect evidence of a crime.  If contraband is found during inspection it may be seized as evidence.  Not a “cover up” for a search; military courts will scrutinize.

NONPUNITIVE ENFORCEMENT  Good leadership  Counseling: Oral and written  Reprimands: Oral and written  Enlisted administrative separations  Corrective training  Bars to Reenlistment  Withhold benefits and privileges

NONJUDICIAL PUNISHMENT ARTICLE 15, UCMJ  Commanders authorization to impose punishment  Purposes of an Article 15:  Correct, educate, reform soldiers.  Avoid the stigma of a court-martial.  Promote efficiency in discipline.  When is an Article 15 appropriate?  Minor crimes under UCMJ  Other administrative measures fail or they are not appropriate.

FILING OF ARTICLE 15’s  Summarized:  Kept at unit for two years or until transfer  Formal:  E4 and below same as summarized

 E5 and above are filed in OMPF, restricted or performance side

PRETRIAL RESTRAINT General Rule: An accused pending charges should ordinarily continue normal duties. Authorized upon Probable Cause that: UCMJ offense committed Accused committed it Restraint is required to ensure the accused’s presence or to prevent foreseeable serious misconduct

PRETRIAL RESTRAINT  Forms of Pretrial Restraint  Conditions on Liberty  Restriction (in Lieu of Arrest)  Arrest  Confinement  Factors to consider:  Type of offenses committed  Strength of the evidence  Accused’s ties and finances  Accused’s character and record  Contact your JA

COMMANDER’S PRELIMINARY INQUIRY  Immediate commander is required to investigate allegations of criminal conduct  Commander determines format; usually informal

 Purpose:  Determine facts surrounding allegations bearing on guilt or innocence  Preserve evidence/Identify witnesses  Reach an informed decision on disposition  Approach:  Gather all reasonably available evidence

INITIATION OF COURTMARTIAL CHARGES  Is Court-Martial Appropriate? Consider:  Bottom up approach – solve at lowest level.  Any previous administrative action or NJP?  Seriousness of the offense.  Impact of the offense on victims, command, Army, or the nation.  Appropriateness of punitive discharge or long-term confinement/level of court-martial.  Strength of the case; can JA support trial?

SUMMARY COURT-MARTIAL  One officer; Captain or above.  Detailed by convening authority to administer military justice for minor offenses.  All-encompassing responsibility to gather evidence, determine guilt, and assess punishment.  DA Pam 27-7: detailed procedural guide.  Legal Advisor appointed.

INVESTIGATING OFFICER ARTICLE 32(b), UCMJ  Article 32(b):Thorough and impartial investigation is required before every GCM  Purpose:

 MCM purposes  Discovery  Preservation of testimony

 One officer; usually field grade.  Judicial function  DA Pam 21-17: Detailed procedural guide.  Report of Investigation

Summary  Purpose

 Inspections

 Legal Sources

 Urinalysis

 Key Personnel

 Nonpunitive

 Jurisdiction

 Nonjudicial

 Command Influence

 Soldier’s Rights

 Rights Warning

 Art. 15 Hearing

 Search and Seizure

 Punishments

Question & Conclusion

“Injustice is the all the greater when it is armed injustice” Aristotle