Military Justice - Michigan Technological University
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Transcript Military Justice - Michigan Technological University
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