Military Justice - Michigan Technological University

Report
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

similar documents