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Rule #1. Shut up. As anyone who has watched an episode of “Law and Order,” “Cops,” or any other police-based TV show knows, you have the right to remain silent. I would strongly advise that you exercise it. In my experience, it is very rarely a good idea to provide a statement to your command, the MPs, or CID. You may feel that you should provide a statement to CID, the MPs, or to your command to “clear your name.” Don’t do it. You’re likely not going to talk your way out of it.
If your chain of command, MPs, or CID suspects you of committing any offense, they must provide you with your Article 31 rights prior to asking you any questions. The chain of command, MPs, or CID should also provide you with a copy of DA Form 3881. This form will detail what offense you are suspected of committing and lists the following rights that you have:
- You do not have to answer any questions or say anything;
- Anything that you say or do can be used as evidence against you in a criminal trial;
- You have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with you during questioning. Your lawyer can be a civilian lawyer you arrange for at no expense to the Government or a military lawyer detailed to you at no expense to you;
- If you elect to discuss the offenses under investigation with or without a lawyer present, you have the right to stop answering questions at any time, or speak privately with a lawyer before answering a specific question;
- After you have been read your rights, I recommend stating to your chain of command, the MPs, or to CID something to the effect: “I do not understand my rights, I want to speak with an attorney before deciding to answer any questions.”
Fall back on Rule #1 Shut Up. It is important that you do not give additional statements. The government may use any subsequent statements by you to highlight inconsistencies with your first statement. If you have given a statement, hopefully you did not say something that hurts your case. If you have given a statement that is harmful to your defense, there is still hope. Oftentimes, there are ways that a defense attorney can minimize the harm from your statement or even prevent the government from using your statement at trial.
There are three types of courts-martial that may try a servicemember. The three types are a summary court-martial, a special court-martial, and a general court-martial.
- A summary court-martial only has the power to try enlisted members. It is intended to promptly deal with relatively minor offenses. It is sometimes casually referred to as “Super NJP.” A summary court-martial is composed of one commissioned officer who decides guilt or innocence. If a servicemember is found guilty, a summary court-martial can adjudge a maximum punishment of 30 days confinement; hard labor without confinement for 45 days; restriction to specified limits for 45 days; forfeiture of two-thirds pay per month for one month; and reduction to the lowest pay grade. In the case of enlisted members above the pay grade of E-4, the summary court-martial may not adjudge confinement or hard labor without confinement, and can only reduce the servicemember to the next lower pay grade.
- A special court-martial can try any servicemember for any noncapital offense. A special court-martial can be composed of either a military judge or at least three servicemember with a military judge. A servicemember is given the right to choose the composition of the court-martial. If a servicemember is found guilty, a special court-martial can adjudge a maximum punishment of confinement for one year (only enlisted servicemembers); hard labor without confinement for up to three months; forfeiture of two-thirds pay per month for up to one year; reduction to the lowest pay grade (enlisted members only); and a bad-conduct discharge (enlisted members only).
- A general court-martial can try any servicemember for any offense. Prior to convening a general court-martial, a pretrial investigation must be conducted. This investigation, known as an Article 32 hearing, is meant to ensure that there is a basis for prosecution. An investigating officer presides over the Article 32 investigation. After the Article 32, the investigating officer makes a recommendation to the command. The command then determines whether to convene a court-martial or dismiss the case. If your case is sent to a general court-martial, it will be composed of either a military judge or at least five panel members and a military judge. A servicemember is given the right to choose the composition of the court-martial. If a servicemember is found guilty, a general court-martial can, within the limits prescribed for each offense, impose a wide range of punishments to include confinement; reprimand; forfeitures of all pay and allowances; reduction to the lowest enlisted pay grade; punitive discharge (bad-conduct discharge, dishonorable discharge, or dismissal); reduction; fines; and, for certain offenses, death.
Your military counsel will likely tell you that there is nothing that they can do for you until charges are actually preferred. This is because they can’t be officially detailed and begin working on your case yet. During this time, however, the government is likely working on the case against you. Once the government does prefer charges, you and your military counsel may be forced to play catch up. Ms. Shinn can assist you in anticipating the likely charges against you, and in preparing your defense prior to any charges being preferred. Instead of being on the defensive, you can choose to go on the offensive. This will enable you preserve evidence that the government may not be interested in searching for, and secure favorable witnesses on your behalf. In some instances, a thorough pretrial investigation can convince the government that charges are not warranted in your case.
Commanders can initiate administrative separation actions against military members for a variety of reasons, ranging from criminal misconduct (military or civilian) to failed fitness tests. If a member is administratively separated from the military, that member’s service will be characterized as Honorable, General (Under Honorable Conditions), or Under Other Than Honorable Conditions. The characterization that a member receives will largely be based upon the reason for administrative discharge balanced against the quality of the member’s service during that enlistment period. Honorable characterizations are appropriate when the quality of the member’s service generally has met standards of acceptable conduct and performance of duty, or a member’s service is otherwise so meritorious that any other characterization would be inappropriate. General characterizations are typically appropriate if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of his/her military record. Under Other Than Honorable Conditions characterizations (typically referred to as “UOTHC” or “OTH”) are deemed appropriate if based upon a pattern of behavior or acts that demonstrate a significant departure from the conduct expected of military members.
Punitive discharges can only be adjudged at a court-martial. For enlisted members, there are two types of punitive discharges – Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD). While BCDs can be adjudged at either a Special Court-Martial or a General Court-Martial, DDs can only be adjudged at a General Court-Martial. Officers cannot receive BCDs or DDs. Instead, the equivalent form of discharge is called a “Dismissal,” and can only be adjudged at a General Court-Martial. For that reason, officer cases are rarely referred to Special Courts-Martial. The basis for discharge and the characterization of a member’s service will greatly impact the benefits to which the member is entitled, such as veteran’s benefits and the Post-9/11 G.I. Bill.
Absolutely! There are many codified changes to how the military conducts courts-martial. First, it is now required that a Judge Advocate sit as the an Investigating Officer (IO) for all investigations conducted pursuant to Article 32, Uniform Code of Military Justice (UCMJ). This applies to all five services. The military did not previously have this rule in place. Second, alleged victims are not required to testify at the Article 32 hearing. Third, alleged victims have their own attorneys who now, according to recent CAAF opinions have standing to appear in a Court-Martial and speak on behalf of their alleged victim client. I have experienced all of these occurrences recently. Lastly, if a service member is convicted of an Article 120 offense, a mandatory minimum sentence of a dishonorable discharge automatically attaches to any sentence that is adjudged. Congress also took the “good soldier” defense off the table, stating that it is not relevant to an alleged crime.
Yes, the military prosecution is more aggressive. It appears they are zealous in what they advise convening authorities to bring to trial. Cases that would not ordinarily be brought to trial in other jurisdictions are brought to trial in the military. In some cases, a case will go to trial in the face of a recommendation against trial by the Article 32 investigating officer. Even when an IO makes a recommendation against prosecution of a service member based on the shortcomings of an investigation, the convening authority will sometimes refer a case to trial anyway. Usually, if a case is dropped by the military, it is at the request of an alleged victim. Otherwise, if the alleged victim agrees to voluntarily participate in the prosecution, the government usually sticks to their guns and prosecutes the case no matter how weak their evidence.
In all but the rarest of cases, the accused, or defendant, is provided with defense services that meet or exceed constitutional standards for a fair trial; however, in many cases the level of resources defendants have available to them pale in comparison to the resources available to the complaining witness and the prosecution team. Because there are so many sexual assault cases now, military defense counsel wearing the uniform are spread extremely thin. They are worn down in a number of ways. First, some military prosecutors may be tempted to use this disparity in resources as a tool to increase their conviction rate. They may pressure inexperienced and/or overworked defense counsel into corners. Keep in mind, the uniformed military defense counsel is only a defense counsel for one, two, maybe three years at the outside. Then they have to go back to work in another capacity as a Judge Advocate. They still have to play nice and be politically correct.
That is a paradox that no attorney should have to deal with, but it is the reality of being a Judge Advocate in the military. Prosecutors can weigh young defense Judge Advocates down with a litany of requests and may force them to litigate issues that are not seemingly important. If the prosecutor gets a response they don’t like, or a response they deem unprofessional (not zealous advocacy) they often times call the defense counsel’s immediate supervising attorney in his/her chain of command in order to rectify a “problem”. How is this fair to military defendant? The men and women that wear the uniform who are accused of a crime deserve the best defense possible. They deserve a fair trial. With the logistic and strategic advantages prosecutors have, e.g., the new codified rules, prosecutors’ insulation from claims of malicious prosecution, and the ever increasing disparity in resources favoring the prosecution, it is difficult for a Judge Advocate in the role of defense counsel to give their clients the best possible defense.
Unfortunately the politics in Washington, DC is forcing senior leaders in the military to react in a way that is consistent with the decisions on Capitol Hill. This pressure is causing a lemming-like effect in how sexual assault is being handled in the military. First, it starts with the training that service members get on sexual assault. For example, service members are being taught that if you have sex with a person who has been drinking, then you have committed sexual assault, because you cannot have consensual sex with a drunk person. This is not the law, but this is the preconceived notion that potential military jurors walk into a court martial with. Military training is all about muscle memory. Muscle memory is taught by drilling. They are drilling sexual assault training into the minds of potential jurors. Then these jurors walk into a court martial, and it is up to the defense counsel to break these preconceived notions as you defend your client. SHARP is teaching that if you have just one drink, you cannot consent to sexual contact. That is ridiculous. It is not the law, but that is what the jury pool for courts-martial is being taught on a monthly basis.
While each case is different, I generally find that publicity rarely helps a case. Without disparaging my fellow defense counsel, there are certainly some who decide to take cases to the media to feed their own ego. I am not one of them. If media involvement is warranted, we will discuss options available.
While I do take a certain number of pro bono cases each year, I don’t take them via my website. If you are a servicemember, you already qualify for pro bono representation through the JAG. If you are a civilian and you think you qualify for pro bono services, contact your local Public Defender’s Office.
I retired as a Captain (O-3E), serving 20 years in the Marine Corps. I spent half my time enlisted and the rest as a judge advocate (4402), serving all over the world – MCRD San Diego, Okinawa, Camp Pendleton, Camp Lejeune, MCAGCC 29 Palms, Fallujah, JTF Guantanamo Bay, and The Pentagon, among others.
Not at all. I provide worldwide representation to servicemembers. You should never select a civilian attorney simply because they are physically located close to you. You should choose one based on experience and the fit & comfort with you – the client.
An Article 32 hearing or preliminary hearing is often colloquially referred to as the military’s equivalent of a grand jury. The analogy, however, isn’t exact. Before a charge can be referred to a General Court-Martial, the government must present all available evidence to an impartial Preliminary Hearing Officer (PHO). This PHO examines the available evidence and makes a recommendation to the convening authority regarding an appropriate disposition of the case. Unlike civilian grand jury hearings, however, the military permits the accused to be present and take part in the Article 32 hearing. Thus, an accused may be present with an attorney to review the government’s evidence, may present evidence in his/her defense, and may testify if desired. Recent changes to the Article 32 have weakened it as a discovery tool for the defense, but it is still a good glimpse at the government’s evidence against the defendant.
Pretrial confinement is physical restraint that deprives a member of their freedom pending the disposition of criminal charges against them. Only a member who is subject to trial by court-martial may be confined. A member may be ordered into pretrial confinement only when there is reasonable belief that (1) an offense triable by court-martial has been committed; (2) the member to be confined committed it; and (3) confinement is required by the circumstances. Confinement is “required by the circumstances” if it is foreseeable that the member will not appear at trial or will engage in further serious criminal conduct. During the period of pretrial confinement, military members continue to receive pay and benefits. Further, in the event a member is convicted and sentenced to confinement at their subsequent court-martial, all time spent in pretrial confinement is credited against any period of confinement received as part of their court-martial sentence.
Contrary to popular belief, you have many rights at a court-martial. While the military’s justice system (like any justice system) has its problems, overall it is a fair process. The following is a non-exhaustive list of some of the rights military members enjoy at a court-martial:
If tried before a Special Court-Martial, you may be tried by a court consisting of at least three members. If tried before a General Court-Martial, you may be tried by a court consisting of at least five members.
If you are enlisted, you have the right to be tried by a court consisting of at least one-third enlisted members.
You have the right to be tried by a military judge alone.
You have the right to challenge for cause the military judge and any court member. You also have the right to challenge one court member peremptorily, that is, for no specified reason.
You have the right to assert any defense or objection.
You have the moral and legal right to plead not guilty to the charges against you. The government must prove its case against you beyond a reasonable doubt if you plead not guilty.
You have the right, in findings, to testify as a witness or remain silent.
You have the right to introduce evidence through counsel.
You have the right to confront witnesses against you and to cross-examine them.
If you are found guilty of any offense, you have the right to introduce evidence in extenuation and mitigation and to testify under oath or make an unsworn statement personally and/or through counsel, or remain silent.