Military Justice for PHX law school pres

8/7/2019 Military Justice for PHX law school pres

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Major Shawn McKelvyMajor Shawn McKelvyEE--mail address:mail address:

[email protected]@luke.af.mil

Military Justice 101Military Justice 101


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OverviewOverview

StructureStructure

Military JurisdictionMilitary Jurisdiction

Our LawOur Law

Military Specific OffensesMilitary Specific Offenses

Types of CourtsTypes of Courts--MartialMartial

Rights of the AccusedRights of the Accused


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US Supreme Court

Court ofAppeals forthe Armed

Forces

Air ForceCourt ofCriminal

Appeals

ArmyCourt ofCriminal

Appeals

Navy-MarineCorps Courtof Criminal

Appeals

CoastGuard Courtof Criminal

Appeals

Trial level courtrooms at basesaround the world


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JurisdictionJurisdiction

Military has jurisdiction over all militarymembers anywhere in the world (24/7/365)

Requisites:

Convened by official empowered to convene it Composed according to rules

Each charge referred by competent authority

Accused person subject to UCMJ Art 2(a)(10) amended to include civilians

accompanying the forces during declared war orcontingency operation

Exclusive v. Nonexclusive


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Our LawOur Law

Uniform Code of Military Justice

DoD Regulations & Air Force Instructions

Military Rules of Evidence

Rules for Courts-Martial

Uniform Rules of Practice Before AF Courts-Martial


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Most Common OffensesMost Common Offenses

Drug use and possession

Child pornography

Rape/ sexual assault (involving alcohol)

Others:

Assault

Drunk Driving

False Official Statement

Dereliction of Duty


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Military Specific OffensesMilitary Specific Offenses

Sodomy

ConductUnbecoming an Officer and Gentleman(includes male & female commissioned

officers/cadets/midshipmen) Fraudulent Enlistment

AWOL Offenses

Offenses Towards Superiors

Failure to Obey; Dereliction of Duty

Misbehavior Towards the Enemy

Drunk on Duty

Straggling; Malingering; Dueling (still on the books)


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CourtCourt--Martial TypesMartial Types

Summary Court-Martial

Cap: 30 days confinement, 2/3 forfeiture of payfor 1 month, and reduction to E-1

Special Court-Martial (Think Misdemeanors)

Cap: 1 year confinement, BCD, 2/3 forfeitures

General Court-Martial (Think Felonies)

Cap: death, dismissal or dishonorabledischarge, total forfeitures, reduction to E-1


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Unlawful Command InfluenceUnlawful Command Influence

UCI = The mortal enemy of military justice

CCs may not attempt to coerce or, by anyunauthorized means, influence the action of acourt-martial. Art 37,UCMJ

KEY ISSUE: What is proper involvement & whatcrosses the line?

Examples: Selecting Court Members

Remarks by Senior Commander that mayimproperly influence court members

Commander comments that may improperly deterpotential defense witnesses from testifying


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AccusedsAccuseds RightsRights

The Military Justice System

as prescribed by the Constitution of the United Statesand the Uniform Code of Military Justice (UCMJ)

vs.

The Federal Civilian Criminal System

as prescribed by the Constitution of the United Statesand the U.S. Code


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Suspect InterrogationSuspect Interrogation

Federal

Miranda Rights

Applies only to Custodial interrogation

Military

Article 31 Rights Applies whenever member is a suspect, not just when incustody


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Disciplinary OptionsDisciplinary Options

Federal Prosecute in Federal District Court felonies

Prosecute in Magistrates Court misdemeanors

No lesser options

Military

Administrative Measures

Promotion Action

Discharge ActionDemotion Action

LoR, LoC, LoA, UIF

Article 15

Prosecute at SCM, SPCM or GCM


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PrePre--Trial ExaminationTrial Examination

Military

Article 32 Investigation

Open proceedings

Accused present Defense Counsel Present

Right to cross-examinewitnesses

Public record - accused getscopy immediately

Defense witnesses,including experts, paid bygovernment

Federal

Grand Jury

Secret Proceedings

Defendant usually notpresent

Defense counsel not ingrand jury room

No right to cross-examine witnesses

Indictment often sealed

No defense witnesses


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PrePre--Trial ConfinementTrial Confinement

MilitaryStrict rules forpretrial confinement rarely used

FederalRecognizance, orBail at defendants

own expense


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Legal RepresentationLegal Representation

Military

Free ADC and/or SeniorDefense Counsel

Criminal defensespecialists

Active representationbegins much earlier in

process, usuallyimmediately aftercharges are preferred

Representation continuespost-trial

Federal

Defendant pays unlessindigent

If indigent- public defenders office

not unusual fordefendant not to meet

attorney until justbefore trial


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The JuryThe Jury

Military Convening Authority selects panel

Article 25 criteria: age, education,training, experience, length ofservice, and judicial temperament

court panel almost alwaysmuch more highly educatedthan civilian juries

One preemptory challenge

Unlimited challenges for cause Accused chooses Military Judge or

Members Also, officer v. enlisted What would you choose? Why?

Federal Randomly selected jury of

peers chosen from entirecommunity

tend to be over-

represented by lesseducated citizenry

Multiple preemptorydefense challenges

Unlimited challenges for

cause


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Witness CostsWitness Costs

Federal

At the Defendantsexpense; unlessindigent

Military

The Military pays


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The VerdictThe Verdict

Military

Normally 2/3 majority toconvict

Less than 2/3 majorityacquits

No hung juries, no re-trials

Federal Unanimous to convict or

acquit

Re-trial at prosecutors

option if hung jury New evidence may be

presented to secureconviction


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The SentenceThe Sentence

Sentenced by trier of fact

NO sentencing guidelines

The Good Military Character Defense

The unsworn statement = the defense counselsbest friend and the prosecutors worst enemy


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The AppealThe Appeal

Military

Automatic review byconvening authority

Additional review by twoappellate courts (onemilitary, one civilian) inmost serious cases

Accused provided free

appellate specialists

Federal

No automatic appealsexcept death penalty cases

Only one appellate level inmost cases

Almost always requiresdefendant to hire appellatespecialist(s)


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You be the JudgeYou be the Judge

Civ MJ

XSuspect RightsDisciplinary Options

Pretrial InvestigationNotif of Charges

Pretrial Release

Legal Representation

Trial Procedure

Evidentiary Rules

Jury

Witness Costs

Verdict

Transcript

Appeals

Fairness Report Card

XX

X

X

XX

XX

By any objectiveevaluation, militaryjustice system is as fairor fairer than itscivilian counterpart


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Questions?Questions?

Military Justice for PHX law school pres

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