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76 Cards in this Set
- Front
- Back
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Philosophy & Purpose of Military
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to preserve GOOD ORDER & DISCIPLINE making command control more effective in creating an effective fighting force.
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History of Military Law
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based on the British Articles of War - the American Laws of War founded by Washington in 1775 - very basic (dereliction of duty - sleeping on duty, mistreatment of prisoners, etc.)
More offenses were added over time both criminal i.e. robbery and military i.e. aiding the enemy 1920 Judge Adv as Trial Judge - amended Articles of War 1950 Uniform Code of Military Justice - legislative act - 10 USC 801-946 (passed b/c of WWII during which 1.6 mil courts martial) |
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Authority for Military Law
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Art I Sect 8 - Congress shall provide for common defense, declare war, raise and support armies, provide for militia and makes rules to govern them
Art II Sect 2 - President is commander and chief Art II Sect 10 - no state can have their own military (National Guards can be federalized.) UCMJ (Uniform Code of Military Justice)- applies to all branches MCM (Manual for Courts Martial) - contains charges, specs, max punishments, and MRE (Military Rules of Evidence) CASELAW and Service Regulations |
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Military Courts and Appellate Structure
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Trial Level - court martial on military installation
Auto Appeal - Service/Branch Court of Criminal Appeals - 10 days to waive U.S. Court of Appeals for Armed Forces U.S. Supreme Court State Ct v. Fed Mil Court = No Dble Jeopardy Fed Ct . v Fed Mil Court = Double Jeopardy |
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Convening Authority
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Whatever COMMANDER that has authority to convene a court martial and determine what type of court martial - but accuser (usually immediate commander of the accused) CAN'T be both accuser and convening authority.
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Panel = Jury
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usually composed of all officers but if the accused is an enlisted they have the right to have 1/3 of the panel be enlisted military members
•Pre-emptory challenges (only 1) – challenge member for any reason you want •Unlimited Challenges for CAUSE Death case - unanimous Confinement more than 10 years - 3/4 agreed All others - 2/3 agreed. |
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Preferral of Charges
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formal procedure for the accuser to make the accusation, signed by the accuser (usually the immediate commander of the accused).
After this is done, the charges go through chain of command w/ recommendations made on it as it goes up until it reaches General Court Martial Convening Authority – who then signs Convening Order |
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Solario v. U.S. (1987) - Jurisdiction
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lower Court followed O'Callahan v. Parker which said that military only has jurisdiction where the offense was SERVICE CONNECTED, Solario overturned that decision and said that we are looking to the STATUS of the accused as a military member - i.e. if you have a military member who commits a crime ANYWHERE the military has jurisdiction. - attaches at the time mil member signs K and takes oath.
Cadets in military academies are still subject to military jurisdiction |
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Punitive Articles
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Articles 77-134 of MCM - 133 catch all for officers (3 clauses 1-neglecting duty results in prejudice to good order and discipline 2- conduct that brings discredit to armed forces 3 - noncapital crimes of federal or state laws not covered by UCMJ) and 134 general article catch all (can't bring anything under this article if it is covered by 80 through 132) and (NO CAPITAL offenses under 134).
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Non-Punitive Measures
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Administrative Corrective Measures - from commander like oral reprimand, extra-training, withdrawal of privileges, very informal - no appeal process.
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Article 15 = Non-Judicial Punishment (NJP) (between Non-punitive and Courts Martial/Punitive)
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Given by Commanding Officer
Not Federal Conviction - for minor offenses, designed for "corrective" purposes - shouldn't issue Art 15 if punishment for offense is BCD, DD or confinement for more than 1 year CAN be refused (but then goes to Court Martial) - can consult w/ atty but no right to have one represent or present at issuance in commanders office Statute of Limitations on Article 15 - 2 years! No double jeopardy for Article 15s and Courts Martial. |
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Jurisdiction (Foreign over Military Members)
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SOFA (Status of Forces Agreement) - host country has jurisdiction until they waive it
NATO - military has jurisdiction on base of service members, if an off base crime is committed, host country has jurisdiction until they waive |
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Jurisdiction (Foreign over Non-Military Civilian)
Military Extraterritorial Jurisdiction Act |
Off base - host country has jurisdiction, but if waived:
We detain, have a hearing via VTC w/ U.S. Magistrate who determines probable cause and can order civilian be sent to U.S. on place w/ guard and Port of Entry District Court tries civilian. |
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Command Authority - Chain of Command
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President --> Secretary of Defense --> General Joint Chiefs of Staff
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Charges v. Specifications
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Charge – is the violation of the UCMJ (i.e. the statute you violated) All charges that are known about should be preferred at the same time – you can put major and minor charges together…
Specification – description of the offense, how the crime was committed, details and factual allegations elements of the crime |
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Types of Article 15s
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Summarized - lowest types, little punishment, applies only to enlisted --> max punishment is 14 days xtra duty or restriction
Formal - 2 types depending on who can impose Art 15: *Company Grade Officer (O-1 thru O-3, Lt to Capt) - max punishment --> reprimand or admonition, 14 days xtra duty or restriction, 7 days confinement, 7 day forfeiture of pay OR reduce in rank by one level if member is E1 to E4 (any combination of these punishments can be imposed). *Field Grade Officer (O4 thru O6) - max punishment --> 60 days restriction, 45 days xtra duty, 30 days confinement, 1/2 months pay forfeiture for 2 months, or reduce rank by 1 or more for E1-E4, by only 1 for E5 or E6, if E7 or higher reduction in rank goes to commander's supervisor *General Officer Grade (O7 thru O9) imposed on commissioned officers or warrant officers; max punishment --> 30 days arrest in quarters, 60 days restriction, 1/2 months pay for 2 months or reprimand |
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Article 15 PROCESS
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1) imposing officer reads member his rights, tells member to consult attorney
2) member must return to commander w/I 3 days to determine acceptance or rejection of Article 15 3) commander makes decision as to what the punishment, issues punishment 4) member has 5 days to determine whether he will appeal punishment 5) member appeals - goes to commander's commander for appellate review (typically the convening authority). 6) Commander's commander will usually receive a recommendation from the JAG office ***Regardless of outcome of Art 15 - appealed or not - the Article 15 will ALWAYS goes to the JAG office for review on legal sufficiency/administratively correct |
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Types of Courts Martial
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*Summary: No Military Judge, no jury or Legal Counsel Required, can be refused, N/A warrant officers and commissioned, abbreviated record of trial (just summary not word for word) Review only by Base Legal Office (informal appeal process); MAX punishment: confinement w/ hard labor for 1 month.
*Special: cannot be refused, minimum 3 mbr jury panel, can opt for MJ alone, Art 32 hearing not required; MAX punishment: confinement w/ hard labor for up to 1 year, BCD, forfeiture 2/3 months pay for up to 1 year. *General: cannot be refused, must be convened by Generals only, Art 32 hearing required, trial by judge or jury (5 mbr min) but if jury they decide case and sentence. MAX punishment: BCD, DD and ANYTHING...if death sentence - no MJ alone and jury must be unanimous. |
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Article 31 Rights - Self-Incrimination Warnings
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Article 31 right against self-incrimination, applies to testimonial acts only.
Miranda and Article 31 aren't the same thing. Right to Counsel typically given at Preferral - includes right to JAG counsel, civilian counsel or military counsel. |
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Court Martial PROCESS:
Steps in a Court Martial |
1. Offense
2. Preliminary Investigation (OSI or NCIS) 3. Pre-Trial Restraint or Confinement Possible - if yes, 48 hours to review by magistrate & 72 hours for counsel 4. Preferral of Charges by Commander - starts 120 speedy trial clock unless Pre-Trial Rest or Conf started it 5. Convening Authority reviews - if enough PC to continue w/ art 32 investigation and reviews Preferral 6. Discovery 7. Article 32 Investigation if General Court Martial - i.e. grand jury indictment type thing - ALSO SJA will give recommendation to CA re type of CM (PRE-TRIAL ADVICE) - available to defense 8. Referral of Charges by Convening Authority to determine Sum CM, Spec CM or Gen CM (MJ, TC and DC appt'd, if panel - picked, MJ gets jurisdiction) & Convening Order is issued. 9. Arraignment - charges read, plea entered - care inquiry if applicable. (if death penalty case, then DC must have notice before arraignment). 10. Art 39a Session (motions, evidence, etc) - but can be done at any time before, during or after trial. 11. Trial - by MJ or Panel 12. Voire Dire - questioning panel - pre-empt challenges (1x) cause (unlimited) 13. TC/DC case - findings/deliberations - sentencing/deliberations 14. Record of Trial Authentication by MJ after review by counsel - Convening Authority gets jurisd back 15. Convening Authority Action - approve, disapprove, grant clemency based on any additional info accused submits, Automatic appeal unless waived w/I 10 days. |
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Article 32 Investigation
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Required for General Court Martial:
1. Investigating Officer(IO) investigates offense, checks for mitigating factors & makes recommendation - Accused CAN BE represented by counsel. 2. SJA (Staff Judge Adv) writes recommendation letter to Convening Authority 3. Convening Authority - gets both SJA letter and IOs recommendation regarding what kind of court martial. |
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Pre-Trial Restraints
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1. Conditions on Liberty - can come and go but check in everyday
2. Restrictions in Lieu of Arrest - stay in these areas, continue duties 3. Arrest - stay in these areas, no duties, Officers stay in quarters, enlisted stay in barracks 4. Pre-Trial Confinement - in JAIL - no bail available but w/ high levels of review, i.e. review by magistr. w/I 48 hours, right to counsel w/I 72 hours. *Restraints 2 through 4 - start speedy trial clock! |
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Arrest v. Apprehension
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Arrest - restrictions of movement, i.e. CoL, RILOA, Arrest
Apprehension - taking into custody, i.e. PTC |
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Mandatory Appellate Review (unless waived)
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Required for BCD, DD and confinement for more than 1 year.
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Pleas
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Three (3) Types:
1. Not Guilty 2. Guilty 3. Guilty to a Lesser Included Offense *Guilty or Guilty to a LIO - waiving 3 rights - self-incrimination, trial and confronting witnesses *May or may not be in a Pre-Trial Agreement BUT if Guilty or Guilty to LIO than there MUST be a Care Inquiry a/k/a Providency Inquiry (U.S. v. Hansen - NO "nolo contender/no contest plea) - highly scripted formal hearing intended to ensure the accused understands fully what they are pleading guilty too, must describe offense to match elements, judge is very careful. |
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Pre-Trial Agreements
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Between CA and accused - MJ must do a separate inquiry (Providency/Care Inquiry) ensuring that the accused understands what they are agreeing to. The quantum portion (i.e. sentencing portion) is never disclosed to finder of sentence. - if there is a difference in the sentence issued by the PTA v. finding of sentence - whichever is the lesser sentence governs.
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Article 39(a) Session
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MJ and Counsel session used to discuss information outside the presence of the jury and to handle any preliminary matters including Motions and discovery matters. Motions not made are waived. Its purpose is to protect innocent accused. 4 types of motions: 1. Dismiss; 2. Illegal Search; 3. Suppress Confessions; 4. Appropriate Relief. Can have an Art 39(a) session at any time before MJ authenticates the Record.
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Discovery
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RCM 701 - All that the TC has is available to the DC. Witness lists are exchanged. DC must provide TC notice with: 1. Alibi; 2. Innocent Ingestion; 3. Lack of Mental Responsibility. If discovery issues, then the party not receiving the requested evidence should file a motion for appropriate relief.
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UCMJ Military Offenses
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Art 83: Fraudulent Enlistment
Art 85: Desertion - no intent to come back Art 86: AWOL - intent to come back Art 87: Missing Movement Art 89: Disrepsect toward Superior Commissioned Officer Art 91: Insubordinate Conduct toward WO or NCO Art 92: Failure to Obey/ (Dereliction of Duty) Art 101: Improper Use of Countersign Art 104: Aiding and Abetting the Enemy Art 133: Conduct Unbecoming Gentleman/woman (includes Cadets or midshipman w/Officers (charge this w/the other charge i.e. robbery) Art 134: Catch all charge (General Article). |
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Government's Right to Appeal
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Have the right to appeal if the Judge's ruling deals w/classified infor, dismissal, or ruling on evidence. Can't however, appeal just b/c gov lost at trial.
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Lesser Included Charges
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Article 79 - Idea is that there are lesser included offenses within some charges. I.E. Desertion's LIO is AWOL.
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Art 77: Principal
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Perpetrator is the crime committer
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Art 78: Accessory After the Fact
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Failure to report the offense does not count. Have to show that the principle DID commit the crime, but guilt in trial is not a requirement. Different levels of punishment but basically can get the max punishment for the crime committed (principal offense). No death penalty, 1/2 of the confinement for that offense not to exceed 10 yrs.
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Art 80: Attempts
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Attempted to perform the act but failed. Can be convicted of attempt even if offense was completed b/c attempt would be a lesser included offense. Must be an overt act which arises to more than mere preparation.
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Art 81: Conspiracy
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Even if you are physically unable to commit the primary act you can be held under this charge. Doesn't have to be in writing, just a common understanding must exist. Overt act doesn't itself have to be criminal and the act must be intended to effect the commision of the intended offense. Max: same as the offense committed. No death, no min punishments provisions, no confinement in excess of 20 years (unless attempted murder then ok for 21 or more years confinement).
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Death Penalty
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Must be authorized in UCMJ. Written notice must be given to DC before arraignment. Unanimous sentencing. Substantial factors outweigh the mitigating factors (ie. bad childhood).
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Privileges - RCM 501
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NO Physician/Patient Privilege - but HIPPA may protect 3rd party disclosure
1. attorney/client 2. chaplain - clergy/penitent 3. psychotherapist/patient 4. spousal - if not a crime against spouse/child & spouse is not a co-conspirator 5. ID of informant 6. classified information detrimental to national security |
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Command Influence - Art. 98
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When a commander who has influenced the justice system in some way, (i.e. making comments to certain people, selecting certain people to be on a court martial, talked to witnesses, present at trial)
PROCESS - when command influence is suspected or alleged, the case is sent to another convening authority and staff judge advocate from a different installation and they report back to the original court 1. accused files Motion for Appropriate Relief which must show: a) specific facts b) proceeding is or was unfair c) unfairness was due to those specific facts Burden of Proof is on Trial Counsel to show beyond reasonable doubt there was NO unlawful command influence Mallet - TC mentioned commander 11x during trial Lewis - lesbo judge dating DC - SJA rumor spreading DuBay Hearing - hearing to determine collateral issues such as command influence |
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Speedy Trial
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120 day clock - 4 months
from Preferral or PTC whichever comes first (conditions on liberty do not count as PTC) violation of speedy trial is constitutional depravation and grounds for dismissal if accused is AWOL, clock does not start guilty plea = speedy trial waiver if PTC release 3 days = no restart/3 mths = restart ***Defense asks for delay tolls clock/sometimes the Trial Counsel can ask for continuance or delay and it can toll the clock (like waiting on genetic/DNA/lab tests). |
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Statute of Limitations
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Art 15 = 2 years
CM = usually 5 XCEPT: any offense punishable by death, i.e. rape, murder OR AWOL, If child abuse = life of child or 5 years whichever longer If accused is in civilian authority or enemy has them – SoL doesn’t run. |
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Post Trial Review
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Required for Punitive Discharge or Confinement of over 1 year
SJA submits SJAR which sums up the record with recommendation to convening authority Accused can submit info also (awards, medals, etc) to get convening authority to mitigate sentence |
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Composition of Appellate Courts
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JAG of each branch reviews
Auto Appeal to Service/Branch Court of Criminal Appeals (unless waived w/I 10 days) - 3 officer lawyers = exmilitary judges US Court of Criminal Appeals - 1 panel of 5 civilian judges appointed by Pres for 15 yr terms |
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Pre-Trial Advice
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Briefing from SJA to Convening Authority recommending level of court martial - available to defense counsel
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Search & Seizure
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Search: examination of person or property to purposely find criminal evidence
Seizure: interference w/ an individual's possessory interest in property BOTH require Probable Cause (reasonable belief) |
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Search & Seizure AUTHORITY
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search warrant can be ISSUED by:
commander, military judge, or military magistrate search warrant can be EXECUTED by: warrant, petty, noncommissioned or company grade officer OFFBASE property: jurisdictional considerations - look to SOFAs, coordinate w/ local authorities if person: military magistrate can order and officer can execute |
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Search & Seizure XCEPTIONS to Probable Cause
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Consent (if not revoked, and can have limits, Miranda not necessary)
Entering or Exiting base Reasonable suspicion w/ weapons - just frisk Incident to lawful stop or apprehension - reasonable suspicion |
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Military ONLY XCEPTIONS to Probable Cause
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Inventory: equipment, offices...military has right to take inventory of its property, but can't be used as subterfuge
Inspection: barracks, housing, dorms...military has right to inspect to maintain good order and discipline, but can't be used as subterfuge (i.e. no looking for specific person's drug stash but can ensure there is no contraband in the barracks at all). Drug dogs can be used though. Entering a jail - body cavity search Random Urinalysis Blood Alcohol Test |
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Administrative Discharges
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Form DD-214
Three (3) Types: 1. Honorable Discharge 2. General Under Honorable Conditions *Notification Procedure unless in for more than 6 years 3. Under Other than Honorable Conditions UOTHC - right to have administrative board of officers (mini-trial) XCEPT if discharge is in lieu of Courts Martial and can only be approved by CA after board review **Entry Level Separation - not criminal, just substandard performance - failure to adapt to military, only issued w/I 180 days of service - no DD-214 issued and no VA Benefits |
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Conscientious Objector
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Member has a conscientious objection to War in any form or to the bearing of arms - question is whether the convictions of the member are sincere
1. member must be interviewed by chaplain or psychiatrist for validity - reviewed by Board 2.burden of proof is on the member at a clear & convincing 3. reviewed by SJA --> CA --> secretary of Military for Final Decision |
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Insanity Defense - Competency to Stand Trial
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*Compentency to Stand Trial - standard is Preponderance of the Evidence:
1. is the accused unable to understand the nature of the proceeding against them OR 2. is the accused unable to cooperate intelligently in his/her defense If before Referral : Convening authority would decide whether or not the person is competent to stand trial - if not competent, member is committed to the custody of the attorney general and they have 4 months to determine if that person can stand trial. There can be continued hospitalization if there is a possibility that they will regain competency. If after Referral - raised by Defense Counsel - Military Judge has hearing to determine competency of the accused w/ board members - Trial Counsel has to prove accused is not insane beyond a reasonable doubt. |
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Insanity Defense - Competency at time of Offense
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Competency at Time of Offense - standard is Clear and Convincing - this is an affirmative defense and looks to whether mens rea was present - was unable to appreciate the nature and quality of the nature of the act
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Immunity Against Self-Incrimination
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1. Transactional - prosecution is giving a deal for help
2. Testimonial - can't use what the witnesses is testifying about against them in court martial |
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Article 138 - Complaint Against Commanding Officer
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If member feels that their commander has:
1. gone beyond their authority or is capricious, unfair or arbitrary 2. violates a regulates Make a complaint - PROCESS: a. must complain w/I 90 days of incident b. first complaint to commander to give a chance to rectify - commander has 15 days c. if no satisfaction goes up chain of command to CA through formal article 138 complaint |
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Posse Comitatus
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18 USC 1835 - prohibits the use of federal military personnel or resources for civilian law enforcement
XCEPT: drug interdiction national crisis/natural disaster |
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Status of Forces Agreements (SOFA)
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General Rule: anyone entering a foreign country is subject to the criminal laws of that country.
*SOFAs allow US to retain jurisdiction of its service members for crimes against service members or US property, if the crime is against foreign citizen or property - that country has primary jurisdiction unless they choose to waive. If they exercise primary jurisdiction - SOFA requires fundamental due process, i.e. right to counsel and observation of the trial - BUT it does not have to be a jury trial. |
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Military Extraterritorial Jurisdiction Act
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18 USC 3261 - covers dependents, government contractors, non military but affiliated w/ military member.
*With permission from host nation, military can detain them and hold a VTC hearing w/ US magistrate who determines whether to send then back to U.S. and turn them over to attorney general |
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Law of War
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body of international law intended to regulate conduct of states during periods of conflict:
*Hague Convention (1907) - regulates methods and means of warfare *Four (4) Geneva Conventions (1949) - protects victims of war, wounded and sick, shipwrecked at sea, POWs and civlians |
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Hague Convention (Four Principles)
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Necessity - attacks limited to military objectives which by their nature, location, purpose or use offers a definite military advantage.
Humanity - forbids arms that are calculated, designed to cause unnecessary suffering Proportionality - loss of property or life incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. (unavoidable/unplanned collateral damage is excluded) Distinction - no indiscriminate attacks that don't have military objectives |
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Lawful Combatants
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People who fight under insignia/uniform/command/belong to a territory. Protected under Geneva of 1949.
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Unlawful Combatants
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civilians participating in hostilities. Not protected under Geneva of 1949. This includes ppl who wear a false uniform or who don't wear a uniform at all. No state representation or geographic entity is represented. (Spy/Snipers = if no insignia then they are unrecognizable). Unlawful Combatants are tried under laws of the state/nation that captures them.
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Noncombatants
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There is a duty to protect and respect these types of people: medics, chaplains, those evacuating from a shipwrech/falling plane, wounded/sick, POWs, and civilians not engaging in unlawful combatant activity.
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Noncombatant Parachutist
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Given opportunity to surrender
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Noncombatant Civilians
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Must provide them with a warning and must be given HUMANE treatment.
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POWs
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They are considered "out of combat." Surrender can be made by any method of intent. The default is to treat all as POWs until their status can be determined. No medical experiments on them at all.
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Geneva Convention of 1949
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Explains how to treat POWs, Combatants vs. Noncombatants. Purpose is to protect wounded/sick; POWs; and Civilian Prisoners. There is access to Red Cross in POW camps. Must provide those who are attempting to escape a burning plane, wrecked ship etc with the opporunity to get out of the plane/ship. Once they fire, you are able to return fire b/c their status then changes to a combatant. Must make an effort to rescue. You may capture a doctor/medical supplies etc but you are permitted from targeting them.
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Targeting of Certain Types of Places: Defended Places
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Can target if it is either: 1. occupied by a combatant force; 2. city that is indivisible from surrounding defensive positions. Also permitted to target if your force is attempting to pass through that location.
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Targeting of Certain Types of Places: Undefended Places
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Prohibited from attack if: no combatants or equipment is located there or if there are no acts in support of the enemy.
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Targeting the Foreign Environment
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Prohibited from destroying it just to destroy it. If there is a specific military objective that would be accomplished through destruction then it is permitted.
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Targeting of Certain Types of Places: Medical Facilities
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Prohibited from intentionally attacking. Providing a warning is required. However, can't destroy medical supplies or transportation.
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Targeting of Certain Types of Places: Property
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May seize and use state and private property. However, private property requires just compensation when war is over.
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Targeting of Certain Types of Places: Cultural
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Prohibited from destroying property dedicated to religion, science, art. (AJ - I am not sure if this is correct; can't find it anywhere in my notes or in the book).
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Targeting of Certain Types of Places: Dangerous Forces
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Dams, nuclear power plants etc. If destruction is in furtherance of military objection but it would cause sever civilian loss then destruction is prohibited. If enemy is using it to support military effort than we can target it.
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Ruse v. Perfidy
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Ruse is permitted but perfidy is NOT. Ruse = masking troops to fake an attack, radio traffic to confuse enemy, changing street signs, psychological warfare. Perfidy = Disguise destroyer as a hospital, can't change uniforms, can't fake surrender.
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Collateral Damage
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Can't be held accountable for collateral damage. If church is being fired from and you fire back at church and some parts of the village gets injured then really that collateral damage is okay.
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Weapons Prohibited
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Glass fragmentation bullets; Dumb mines; lasers to blind enemy; chemical warfare. Idea is that we can't use weapons that causes extensive suffering. Weapons are reviewed/inspected by TJAG.
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Art 51 of UN Charter
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State has right to self defense/can initiate self defense - don't have to wait for battle to come to you. Pre-emptive strike theory.
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