MILITARY JUSTICE Maj Sean R. Dunn DSJA MARFORRES DSJA MARFORNORTH (504)678-2593 firstname.lastname@example.org OBJECTIVES • Military Justice Refresher • Investigations • Article 31b Rights • Pretrial Confinement • Search vs. Inspection • Reservists and Jurisdiction • Art 112a “Tricks of the Trade” Courts-Martial • Summary Courts-Martial • Special Courts-Martial • General Courts-Martial COURT-MARTIAL OPTION CONVENING ORDER PREFERRAL Article 32 Hearing IO Report ART 33/34 LETTERS SPCM REFERRAL GCM REFERRAL SUPREME COURT CAAF (COURT OF APPEALS FOR THE ARMED FORCES) NMCCA CGCCA ACCA AFCCA (COURTS OF CRIMINAL APPEAL) NAVY, MARINE, COAST GUARD, ARMY & AIR FORCE TRIAL COURTS What to do with Misconduct? Who CAN report an Offense? Who MUST report an Offense? Who should Offenses be reported to? INVESTIGATIONS ARE REQUIRED •R.C.M. 303 •Receipt of information that a member of the command is accused/suspected of offense under UCMJ •“the Immediate Commander SHALL MAKE or CAUSE TO BE MADE a preliminary inquiry . . .” TYPES OF INVESTIGATIONS • RCM 303 - Preliminary Inquiry • CID • NCIS NCIS INVESTIGATION SECNAVINST 5430.107 •Major criminal offenses •Espionage/Classified information •Ordnance/Arson •Deaths •Thefts ($500) •Controlled Substances/Drugs •Missing UA (Foul Play?) •WHEN IN DOUBT CONTACT NCIS OFFENSE INVESTIGATION OPTIONS No Action Court-Martial Non-Punitive SUMMARY Measures SPECIAL Non-Judicial GENERAL Punishment WHAT TO DO WITH MISCONDUCT Courts-Martial Considerations • Cost of Courts-Martial (time, money, manpower) • Gamble of no discharge or acquittal • “The Lost Battalion” • ADSEP v Court-Martial Article 31(b) “ It is far more pleasant to sit comfortably in the shade rubbing red pepper in some poor devil’s eyes than to chase about in the sun hunting up evidence.” British Army Officer India, 1883 Article 31, UCMJ • No person subject to the code may compel self- incrimination • Requires rights warnings prior to questioning Article 31 Warnings Suspected of (? Offense). Right to remain silent. Consequence of waiving right to remain silent. NO RIGHT TO ATTORNEY UNDER 31(b)! WHEN MUST YOU WARN? Mil.R.Evid 305 1) Person Subject to the Code 2) Person is suspected of offense 3) Interrogation or request for any statement WHO IS A SUSPECT? Person who is believed --or-- reasonably should be believed to have committed an offense When considering all the facts and circumstances at time of interview WHAT IS AN INTERROGATION? Any formal or informal questioning intended to --or-- reasonably likely to elicit an incriminating response. RIGHT TO ATTORNEY • Constitution and U.S. v. Miranda • Trigger is “Custodial Interrogation” • What is “Custodial Interrogation”? • Best Practice – Give Right to Counsel Warning! THE SPONTANEOUS CONFESSION • Listening to spontaneous confessor is not an interrogation • No need to warn • No need to stop spontaneous confession WHAT IF? New offense arises during questioning? – Stop and Provide 31(b) rights for new offense. WHEN A SUSPECT WAIVES THEIR RIGHTS • Knowing, Voluntary, and Intelligent Waiver • Best if Waiver is in writing • See, JAGMAN appendix A-1-m for sample form CLEANSING WARNINGS • Used to correct a previous violation of article 31 • Should be given in all cases where a prior statement was made CLEANSING WARNINGS • The statement you gave to [ ] is not admissible . . . . • Regardless of the fact that you talked about this offense before, you still have right to remain silent . . . . PENALTY FOR VIOLATING Art. 31 (b) • “Exclusionary Rule” – Statement will be suppressed at Trial • “Fruit of the Poisonous Tree” – All evidence obtained as a result of the statement will be suppressed PRETRIAL CONFINEMENT • R.C.M. 305 (h)(2)(b) • Probable cause (PC) that an offense triable by court –martial has been committed, and • PC The accused committed the offense, and Pretrial Confinement • PC to believe confinement is necessary b/c it is foreseeable that … – Will not appear – Will engage in serious criminal misconduct – Lesser forms of restraint are inadequate. INSPECTION VS. SEARCH • 4th Amendment • Search? • MRE 313 “Inspection” • MRE 314 “Consent Search” • MRE 315 “Probable Cause Search” US v. LCPL Long • Art 112a • Search of NMCI computer • Expectation of Privacy? • DOD Computer Warning? • How do you search a computer? RESERVISTS • MUST HAVE JURISDICTION OVER RESERVE MARINE AT TIME OFFENSE WAS COMMITTED • UCMJ Art. 2(a)(1) – AD, AT, ADSW • UCMJ Art. 2(a)(2) – IDTs (“Drill”) • NO JURISDICTION 28 days out of the Month! RESERVISTS • Drill Weekend Drug Pops – What can you do? Drill Weekend Pop • NJP or Court-Martial? • Reduce at CRB? • ADSEP? URINALYSIS! • UCMJ 112a – “Wrongful Use” • Urinalysis allows “INFERENCE” of “KNOWLEDGE” and “WRONGFUL” USE • No requirement for Government to provide ANY evidence of wrongful use! • SANCTITY OF TEST IS KEY! Defenses • Not my Urine • Altered Urine • Innocent Ingestion • Legal Use, Legal Substance • Alibi • Good Military Character QUESTIONS?
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