Transcript MILITARY LAW

TAKING THE STAND FOR
VICTIMS
- Preparing for Court -
CPT Meghan Vasquez
Senior Trial Counsel
III Corps & Fort Hood
[email protected]
1
You Hear Court-Martial and Think
of…
What Really Happens - Anatomy of a
Court-Martial
• Initial Disposition & Charging
Decision
• Article 32 & Referral
• Pre-Trial Preparation
• Court-Martial
Initial Disposition
• When a criminal investigation comes to
a close, the evidence is forwarded from
CID or MP to The Office of the Staff
Judge Advocate (OSJA)
• A military lawyer issues an opine (legal
opinion) that either supports or rejects
prosecution of the subject
Initial Disposition
• Rule for Court-Martial (RCM) 306:
“Each commander has discretion to dispose of
offenses by members of that command.”
• Allegations of offenses should be disposed of
in a timely manner at the lowest appropriate
level of disposition
The Charging Decision – Trial
Counsel Duties
• Review all evidence
• Develop a theory of the case/trial memo
• List possible charging options
• Conduct proof analysis of each charge
• Consider prudential/tactical factors
The Charging Decision
• Consider the following…
– Nature/degree of harm
– Panel’s perception/sense of fairness
– Maximum punishments
– Cooperation of the accused
– Improper motives of witness/victim
– Reluctance of victim to testify
– Preserving lesser included offenses
– Uncharged misconduct (MRE 404b)
– Command’s need for good order and
discipline
The Charging Decision
From Theory to DD Form 458
• The decision to charge is memorialized on
The Charge Sheet (DD Form 458)
• Personal Data (Section I) and Charges and
Specifications (Section II) are completed
• A formal accuser takes action after advice
from his/her trial counsel
Preferral of Charges
Any person subject to the code
may prefer charges (RCM 307)
Accuser signs the charges under
oath before a commissioned
officer
Preferral of Charges
• Accuser must swear to:
1. Personal knowledge of the facts, or
2. Investigation into the matters set forth in
the charges and specifications as true in
fact to the best of that person’s knowledge
and belief
Pretrial Investigation
• RCM 405 provides, “No charge or
specification may be referred to a general
court-martial for trial until a thorough and
impartial investigation of all the matters set
forth therein has been made in substantial
compliance with this rule.”
• AKA – Article 32 Investigation
Article 32
• Military equivalent of a grand jury hearing
• Independent investigating officer inquires
into the truth of the matters set forth in
charges, form of the charges and whether
each charge is supported by evidence
Article 32
• Accused has right to counsel
• Examination and confrontation of
witnesses
• Argument and recommendation
Article 32
• Investigating Officer (IO) is a non-lawyer
and must be senior in rank to the
accused Soldier
• IO has a detailed military counsel to
guide him/her through the proceedings
Article 32 Report
• IO reports findings and
recommendations on DD Form 457
• Standard applied is whether reasonable
grounds exist to believe that the
accused committed the offenses alleged
on the Charge Sheet (speed bump to
trial)
Pretrial Advice
• Before referral of charges, they shall
be referred to the staff judge
advocate of the convening authority
for consideration and advice (RCM
406)
Forwarding & Disposition of Charges
Who may dispose of charges?
– Only persons authorized to convene courtsmartial or administer Article 15 punishment
Prompt Determination!
- When a commander with authority to dispose of
charges receives charges, that commander
shall promptly determine what disposition will be
made in the interest of justice (RCM 401)
Action By Convening Authority
• When in receipt of charges, Convening
Authority may:
1. Dismiss
2. Forward to a subordinate commander
3. Forward to a superior commander
4. Refer to summary court or special court
5. Refer to a general court-martial
Referral of Charges
• Referral is the order of a convening
authority that charges against an
accused will be tried by a specified
court-martial
Types of Courts
• Summary Court-Martial (30 days
max. confinement)
• Special Court-Martial (1 year max.
confinement; BCD kick)
• General Court-Martial (max.
punishment authorized; DD kick)
Service of Charges
• Trial counsel ensures servic of charges
that have been referred upon the
accused
• Rules – no person may be brought to
trial before a general court-martial within
5 days after service of charges (3 days
for special courts)
Pretrial Matters
• Discovery
• Depositions
• Deals/Alternate Dispositions
Pretrial Negotiations
Witness Preparation
• Witness Preparation is key!
• Directly translates to achieving
theme/theory of case
• Aids in solid direct examinations and
ideas for cross-examination
Witness Preparation
Assembling the Court
• RCM 901 – Opening Session
• A court-martial is in session when the military
judge so declares
• RCM 911 –Assembly
• The military judge shall announce the
assembly of the court-martial
Voir Dire – RCM 912
Goals of Voir Dire
• Obtain information for the intelligent
exercise of challenges
• Introduce counsel and accused and
educate members about the
facts/theory of the case
Challenges
• Causal challenges (unlimited) based on
actual or implied bias (or, if all else fails, the
liberal grant rule)
• Perempory challenges (only one)
• The entire process is controlled by the
military judge through two stages – group and
individual voir dire
Case on the Merits
Opening Statements
Opening Statements
• Member’s first opportunity to hear the
story of the alleged crime
• Put victim’s story before the court and
outline theory of case
• Build rapport with the panel
Witness Testimony
Direct Examination Objectives
• Elicit witness observations/activities so
the trier of fact understands, accepts
and remembers the testimony
• Lay a foundation for admission of
documentary, demonstrative or physical
evidence
Direct Examination Focus
• The trier of fact’s focus (military judge or
panel) should always be on the witness
• The technique is single-fact, nonleading, open-ended questions
-Allows witness to tell story
-Minimizes presence of the lawyer
Effective Direct Examinations
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Brief
Simple language/vary pace
Elicit descriptive narratives
Logically organized (chronology)
Use of exhibits (panel friendly)
Practice with witness in courtroom
Practice again
Common Problems on Direct
• The witness who forgets – fear not!
-Recollection refreshed
-Recollection recorded
-Leading questions
-Recess
“Taking the Sting Out of Cross”
• Consider volunteering weaknesses
• For example, if the victim was drinking,
elicit that fact on direct to “take the sting
out of cross”
Direct Examination – Where did the
Lawyer Go?
• Remember, the focus is on YOU
• Practice physically turning toward the panel
to give your answer
• You don’t need to rely on a lawyer—YOU are
the witness with first-hand information known
only by you. YOU are at the helm!
Why are Panel Members Asking Me
Questions?
• In military court, the panel members
may ask questions of witnesses
• Civilian juries are called juries because
they do not actively participate in
questioning witnesses
• A panel queries any and all witnesses
How Are Questions Asked?
• Members write questions on paper
• The judge will ask if there are questions
from the members; questions are
passed to bailiff and onto military judge
for review
• Counsel review and note objections
• Judge rules on objections and reads the
question to the witness
Cross-Examination
Selective Attacks on a Specific Story
Purpose of Cross-Examination
• Introduce a new fact
• Weaken or highlight a fact
• Weaken or strengthen the credibility of
a witness
Leading Questions Only
• Leading questions gives the lawyer
control
• Leading questions declare the answer:
Nonleading: Do you like to drink?
Better:
You like to drink?
Best:
You drink? You like it?
Cross-Examination Warnings
• Don’t try to outwit the lawyer
• If you feel a need to explain your
answer, do
• Don’t be bullied into yes or no
• Don’t be afraid of silence; wait for the
next question
• Be firm, polite but not sarcastic
• If you don’t know, say so
Findings Argument
• RCM 919
• After the closing of evidence, trial
counsel shall be permitted to open the
argument. The defense shall be
permitted to reply
Sentencing Case
• Should the trial counsel secure a
conviction, the trial proceeds
immediately into the sentencing phase
• Witnesses are called to testify regarding
matters in aggravation
• Counsel close with argument
• Trial counsel may recommend a specific
lawful sentence
Courtroom Procedure
• After you are sworn, the Trial Counsel will
conduct a DIRECT EXAMINATION (asking
you who, what, where, when, why types of
non-leading questions)
• Defense Counsel may then conduct a
CROSS-EXAMINATION where leading
questions are proper and might feel hostile
Courtroom Procedure
• Trial Counsel may RE-DIRECT
• Defense Counsel may RE-CROSS
• Finally, if this Court-Martial is a Panel
case, the Panel Members may ask
questions
Confidence-Builders for Testifying
• Practice your testimony with the TC
• Meet the Defense Counsel before you take
the stand
• See the courtroom before the trial
• Practice your testimony in the courtroom
under life-like conditions
Rules for Witnesses in Court
• Stand to take the oath
• Dress neatly and professionally
• Do not carry notes, purses or weapons
into the courtroom
• Don’t memorize – testify from memory
• Answer only the question asked
• Correct incorrect statements
immediately
Rules for Witnesses in Court
• Be silent if the judge interrupts or if a
lawyer objects
• Explain or clarify answers, but don’t
volunteer information
• If you don’t understand a question, ask
for clarification
• Stick to the facts – don’t exaggerate
• If you don’t remember, say so
Conclusion
• Know your trial counsel
• Cooperate with defense counsel
• If you are identified as a witness, make
sure you practice with the attorneys
before trial
QUESTIONS???