CRIMINAL LAW DESKBOOK Volume II Current as of 3 August 2012 Pre and Post Trial Procedure The Judge Advocate General’s School, US Army Charlottesville, Virginia FOREWORD The Criminal Law Department at The Judge Advocate General's Legal Center and School, US Army, (TJAGLCS) produces this deskbook as a resource for Judge Advocates, both in training and in the field, and for use by other military justice practitioners. This deskbook covers many aspects of military justice, including Substantive Military Justice (Volume I), Pre- and Post-Trial Procedure (Volume II), Trial and Evidence (Volume III), and Special Topics in Military Justice (Volume IV). Military justice practitioners and military justice managers are free to reproduce as many paper copies as needed. The deskbook is neither an all-encompassing academic treatise nor a definitive digest of all military criminal caselaw. Practitioners should always consult relevant primary sources, including the decisions in cases referenced herein. Nevertheless, to the extent possible, it is an accurate, current, and comprehensive resource. Readers noting any discrepancies or having suggestions for this deskbook's improvement are encouraged to contact the TJAGLCS Criminal Law Department. Current departmental contact information is provided at the back of this deskbook. CRIMINAL LAW DESKBOOK VOLUME II Table of Contents Overview of the Military Justice System TAB A Unlawful Command Influence TAB B Professional Responsibility TAB C Victim/Witness Assistance Program (VWAP) TAB D SHARP and Domestic Abuse TAB E Domestic Abuse Program – Lautenberg Amendment TAB F Jurisdiction/MEJA TAB G Nonjudicial Punishment – Article 15, UCMJ TAB H Summary Court TAB I Speedy Trial TAB J Pretrial Restraint and Pretrial Confinement Reviews TAB K Self-Incrimination TAB L Right to Counsel and IAC* TAB M Search and Seizure TAB N Discovery TAB O Article 32 TAB P Pretrial Advice TAB Q Pretrial Agreements (PTAs) TAB R Court-Martial Personnel TAB S Production TAB T Pleas TAB U Post-trial TAB V Appeals and Writs TAB W Post-conviction* TAB X Double Jeopardy* TAB Y * Tab is currently under construction. See the CRIMINAL LAW DESKBOOK VOL. I (SUBSTANTIVE MILITARY JUSTICE) for: pleadings, scope of criminal liability, inchoate offenses, military offenses, conventional offenses, and defenses. i See the CRIMINAL LAW DESKBOOK VOL. III (TRIAL AND EVIDENCE) for: case construction, trial notebooks and checklists, interviewing witnesses, preparing witnesses, negotiations, motions, voir dire and challenges, opening story, direct, using evidence, cross exam, objections, experts, instructions, findings, sentencing, arguments, evidence, classified evidence, and confrontation clause. See the CRIMINAL LAW DESKBOOK VOL. IV (SPECIAL TOPICS IN MILITARY JUSTICE) for: cyber law, urinalysis, sexual crimes and domestic violence, commissions, protection of military installations/SAUSA, media, capital litigation, and mental responsibility, competence, and sanity boards. ii OVERVIEW OF THE MILITARY JUSTICE SYSTEM Table of Contents I. INTRODUCTION................................................................................................. 1 II. CREATION OF THE MILITARY JUSTICE SYSTEM .................................. 2 III. JURISDICATION................................................................................................. 2 IV. TYPES OF OFFENSES ....................................................................................... 3 V. INVESTIGATION OF OFFENSES .................................................................... 4 VI. TYPES OF COURTS-MARTIAL ....................................................................... 4 VII. PROCEDURAL SAFEGUARDS ........................................................................ 6 VIII. POST TRIAL REVIEW ..................................................................................... 13 IX. APPELLATE REVIEW ..................................................................................... 13 X. CONCLUSION ................................................................................................... 14 APPENDIX A ...................................................................................................................17 APPENDIX B ...................................................................................................................18 Vol. II A-i THIS PAGE DELIBERATELY LEFT BLANK Vol. II A-ii MILITARY JUSTICE SYSTEM Outline of Instruction I. INTRODUCTION A. Basic Goals. A basic objective of any criminal law system is to discover the truth, acquit the innocent without unnecessary delay or expense, punish the guilty proportionately with their crimes, and prevent and deter future crime. Military justice shares these objectives in part, but also serves to enhance good order and discipline within the military. B. Separate System. A question that has been debated often, especially whenever there is a high profile case that captures the public’s attention, is why do we have a separate military justice system? Often, what comes out of those debates is that fact that “the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733 (1974). As the U.S. Supreme Court noted in Parker v. Levy, the “differences between the military and civilian communities result from the fact that ‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.’” Id. at 743, citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). Recognizing that the military is a “separate society” the reasons most often provided for a separate military justice system are based upon the following rationale: 1. The worldwide deployment of military personnel; 2. The need for instant mobility of personnel; 3. The need for speed trial to avoid loss of witnesses due to combat effects and needs; 4. The peculiar nature of military life, with the attendant stress of combat or preparation for combat; and 5. The need for disciplined personnel. See FRANCIS A GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE, Third Edition, v (2007). C. Good Order and Discipline. Of all the reasons provided for a separate system, perhaps the most persuasive is our need for disciplined personnel. Members of the Armed Forces are subject to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. United States v. Watson, 69 M.J. 415 (2011). In the military justice system, discipline can be viewed as being as important as individual liberty interests. The Preamble to the 2008 MCM recognizes the importance of discipline as part of military justice. It states: “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” Manual for Courts-Martial, Preamble, Paragraph 3, (2008). Given the need for discipline in the military, military justice is under the overall control of the commander. 1. Commander’s Discretion. Commanders have a wide variety of options available to them to deal with disciplinary problems. These options include administrative actions ranging from an informal counseling, extra training, withdrawal or limitation of privileges, and administrative separations, to punitive options such as punishment under Article 15, UCMJ, and trial by court-martial. 2. Prosecutorial Discretion. Prosecutorial discretion lies with the commander and not the judge advocate. This truth is a foreign concept to those familiar with Vol. II A-1 civilian practice where prosecutorial discretion is entrusted to an attorney. In the military, it is the commander, not the Staff Judge Advocate that decides whether a case will be resolved administratively or referred to a court-martial. If the case is referred to a court-martial, it is the commander that decides what the charges will be. Although the commander receives advice and administrative support from the Staff Judge Advocate, it is the commander that ultimately must make the decision whether prosecution is warranted. D. Key References. 1. Military Justice – Army Regulation 27-10 2. Manual for Courts-Martial (MCM) 3. Rule for Courts-Martial (R.C.M.) 4. Military Rule of Evidence (M.R.E.) 5. Uniform Code of Military Justice (UCMJ) 6. Military Judges’ Benchbook – DA Pam 27-9 II. CREATION OF THE MILITARY JUSTICE SYSTEM A. Authority. In order to provide for the common defense, the Constitution gives Congress the power to raise, support and regulate the Armed Forces. U.S. Const., Preamble, art. I, § 8, cls. 11-14 (War Power). Under this authority, Congress has enacted the UCMJ in 1950. 10 U.S.C. §§ 801-941. The UCMJ is the code of military criminal laws applicable to all U.S. military members worldwide. B. Implementation. The Constitution makes the President the Commander-in-Chief of the Armed Forces. U.S. Const., art. II, § 2, cl. 1. Under this authority, the President implemented the UCMJ through the MCM. Executive Order 12473 (April 13, 1984). The MCM contains the UCMJ, the RCMs, and the MREs. The rules of procedures and rules of evidence for courts-martial are established by the President and authorized by Article 36 of the UCMJ. 10 U.S.C. § 836. The MCM covers almost all aspects of military law. Each service, however, supplements the MCM to meet its individual needs. The Army has Army Regulation 27-10; the Navy and Marine Corps have the Manual for the Judge Advocate General; and the Air Force has Air Force Instructions. 1. Rules for Courts-Martial. The rules that govern the procedures and punishments in all courts-martial. These rules are the equivalent of the Federal Rules of Criminal Procedure. 2. Military Rules of Evidence. The rules that are applicable in courts-martial. The rules are intended to ensure fairness in administration of military justice, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence. M.R.E. 102. 3. Uniform Code of Military Justice. The Congressional Code of Military Criminal Law applicable to all servicemembers. It serves as the foundation of military law. III. JURISDICATION A. The UCMJ gives courts-martial jurisdiction over all servicemembers (U.S. Army, U.S. Marine Corps, U.S. Navy, U.S. Air Force, and the U.S. Coast Guard.). The UCMJ also provides for jurisdiction over several other categories of individuals, including retired members of a regular component of the Armed Forces entitled to pay; retired members of a reserve component who are hospitalized in a military hospital; persons in custody of the military serving a sentence imposed by a court-martial; members of the National Oceanic Vol. II A-2 and Atmospheric Administration and Public Health Service and other organizations, when assigned to serve with the military; enemy prisoners of war in custody of the military; and persons with or accompanying the military in the field during “times of war,” limited to declared wars. Article 2, UCMJ; 10 U.S.C. § 802. B. Court-Martial Jurisdiction. Under the MCM, jurisdiction of a court-martial means “the power to hear a case and to render a legally competent decision.” See discussion to R.C.M. 201(a)(1). Under R.C.M. 201(b), a court-martial has jurisdiction if the following is true: 1. The court-martial must be convened by an official empowered to convene it; 2. The court-martial must be composed in accordance with the Rules for Courts- Martial with respect to number and qualifications of its personnel (military judge and members must have proper qualifications); 3. Each charge before the court-martial must be referred to it by competent authority; 4. The accused must be a person subject to court-martial jurisdiction (personal jurisdiction); and 5. The offense must be subject to court-martial jurisdiction (subject matter jurisdiction). C. The nuances of court-martial jurisdiction are beyond the scope of this outline, however, it is enough that you understand generally that jurisdiction of a court-martial does not depend on where the offense was committed; it depends solely on the status of the accused. See Solorio v. United States, 483 U.S. 435, 447 (1987). IV. TYPES OF OFFENSES A. Overview: A court-martial may try any offense which is listed in the punitive articles of the UCMJ. The punitive articles run from Articles 77 through 134 of the UCMJ. 10 U.S.C. §§ 877-934. Some of the offenses listed within Articles 77 through 134 have a civilian analog, but some are exclusive to the military. 1. Civilian Analog Offenses. Some examples of civilian analog offenses under the UCMJ would be conspiracy (Article 81); murder (Article 118); rape (Article 120) robbery (Article 122); and assault (Article 128). 2. Military-Specific Offenses. Examples of military-specific offenses include desertion (Article 85); absence without leave (Article 86); insubordinate conduct (Article 91); mutiny and sedition (Article 94); misconduct as a prisoner (Article 105); malingering (Article 115); and conduct unbecoming an officer (Article 133). B. General Article 134. In addition to the enumerated offenses above, a servicemember may be tried at a court-martial for offenses not specifically covered within the punitive articles. Under General Article 134, which states that all “crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court martial, according to the nature and degree of the offense.” 1. Federal Assimilative Crimes Act (18 U.S.C. § 13). The military uses Article 134 to assimilate state and federal offenses for which there is no analogous crime in the UCMJ in order to impose court-martial jurisdiction. The potential punishments for violations generally match those applicable to the corresponding civilian offense. 2. Preemption doctrine. The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132. Vol. II A-3