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TitleCriminal Law Deskbook, Winter 2011-2012, Volume I, Procedure
LanguageEnglish
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Table of Contents
                            COVER PAGE
FOREWORD
TABLE OF CONTENTS
TAB A - OVERVIEW OF THE MILITARY JUSTICE SYSTEM
	TABLE OF CONTENTS
	I. INTRODUCTION
	II. CREATION OF THE MILITARY JUSTICE SYSTEM
	III. JURISDICATION
	IV. TYPES OF OFFENSES
	V. INVESTIGATION OF OFFENSES
	VI. TYPES OF COURTS-MARTIAL
	VII. PROCEDURAL SAFEGUARDS
	VIII. POST TRIAL REVIEW
	IX. APPELLATE REVIEW
	X. CONCLUSION
TAB B - PROFESSIONAL RESPONSIBILITY
	TABLE OF CONTENTS
	I. REFERENCES
	II. INTRODUCTION
	III. SCOPE AND GOVERNING STANDARDS
	IV. THE LAWYER-CLIENT RELATIONSHIP
	V. THE LAWYER AS AN ADVOCATE
	VI. OBLIGATIONS TO THIRD PARTIES
	VII. DUTIES OF SUBORDINATES AND SUPERVISORS
	VIII. PROFESSIONAL RESPONSIBILITY COMPLAINTS
	IX. CONCLUSION
TAB C - UNLAWFUL COMMAND INFLUENCE
	TABLE OF CONTENTS
	I. GENERAL
	II. ADJUDICATIVE UCI
	III. ACCUSATORY UCI
	IV. LITIGATING UCI CLAIMS
	V. REMEDIAL ACTIONS
	VI. WAIVER AND FORFEITURE
	VII. FURTHER READING
	APPENDIX A
	APPENDIX B
TAB D - VICTIM/WITNESS ASSISTANCE PROGRAM (VWAP)
	TABLE OF CONTENTS
	I. REFERENCES
	II. DEFINITIONS
	III. CRIME VICTIM’S RIGHTS. AR 27-10, PARA. 18-10
	IV. COMMAND RESPONSIBILITIES
	V. REPORTING REQUIREMENTS
	VI. EVALUATION OF VICTIM/WITNESS LIAISON PROGRAM
	VII. OTHER ASSISTANCE AVAILABLE TO VICTIMS
	VIII. VICTIM ATTENDANCE AT COURT PROCEEDINGS
	IX. CASE LAW DISCUSSING VICTIMS’ RIGHTS
	X. CONCLUSION
TAB E - SEXUAL HARASSMENT/ASSAULT RESPONSE & PREVENTION, DOMESTIC ABUSE PROGRAM
	TABLE OF CONTENTS
	I. REFERENCES
	II. SEXUAL HARASSMENT/ASSAULT RESPONSE AND PREVENTION PROGRAM
	III. DOMESTIC ABUSE PROGRAM
	IV. LAUTENBURG AMENDMENT
	V. CONCLUSION
	APPENDIX A
TAB F - COURT–MARTIAL JURISDICTION
	TABLE OF CONTENTS
	I. INTRODUCTION
	II. JURISDICTION OVER THE OFFENSE
	III. JURISDICTION OVER THE PERSON
	IV. JURISDICTION OVER THE RESERVE COMPONENT
	V. PROCEDURAL CONSIDERATIONS
	VI. JURISDICTION OVER CIVILIANS
TAB G - INITIATION AND DISPOSITION OF CHARGES
	TABLE OF CONTENTS
	I. A DAY IN THE LIFE OF A NEW TRIAL COUNSEL
	II. LAW
	III. ART
	IV. CONCLUSION
	V. REFERENCES
TAB H - NONJUDICIAL PUNISHMENT – ARTICLE 15, UCMJ
	TABLE OF CONTENTS
	I. REFERENCES
	II. INTRODUCTION
	III. AUTHORITY TO IMPOSE NONJUDICIAL PUNISHMENT
	IV. WHO CAN RECEIVE NONJUDICIAL PUNISHMENT
	V. HOW TO DECIDE WHAT OFFENSES ARE APPROPRIATE FOR NJP
	VI. TYPES OF ARTICLE 15S AND PUNISHMENTS
	VII. NOTICE REQUIREMENTS (THE “FIRST READING”)
	VIII. SOLDIER’S RIGHTS
	IX. HEARING
	X. CLEMENCY
	XI. FILING
	XII. APPEALS
	XIII. PUBLICIZING ARTICLE 15S
	XIV. SUPPLEMENTAL ACTIONS
	XV. THE RELATIONSHIP BETWEEN ARTICLE 15S AND COURTS-MARTIAL
	XVI. ADVOCACY POINTS
	XVII. CONCLUSION
TAB I - SUMMARY COURT-MARTIAL
	TABLE OF CONTENTS
	I. INTRODUCTION
	II. SUMMARY COURT-MARTIAL CONVENING AUTHORITY
	III. REFERRAL TO A SUMMARY COURT-MARTIAL
	IV. THE SUMMARY COURT-MARTIAL PROCESS
	V. CONCLUSION
TAB J - PRETRIAL RESTRAINT AND SPEEDY TRIAL
	TABLE OF CONTENTS
	I. PRETRIAL RESTRAINT. UCMJ ART. 9(A); R.C.M. 304
	II. PRETRIAL CONFINEMENT. UCMJ ART. 9-13; R.C.M. 305
	III. SENTENCE CREDIT FOR PRETRIAL CONFINEMENT
	IV. INTRODUCTION TO SPEEDY TRIAL
	V. R.C.M. 707: THE 120 DAY RULE
	VI. UCMJ ART. 10: PRETRIAL CONFINEMENT AND ARREST
	VII. THE SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL. BARKER V. WINGO, 407 U.S. 514 (U.S. S.Ct. 1972)
	VIII. FIFTH AMENDMENT RIGHT TO DUE PROCESS
	IX. LITIGATING SPEEDY TRIAL ISSUES
	X. SENTENCE CREDIT CHART
	XI. SPEEDY TRIAL CHART
TAB K - DISCOVERY AND PRODUCTION
	TABLE OF CONTENTS
	I. REFERENCES
	II. INTRODUCTION
	III. GENERAL
	IV. GOVERNMENT DISCOVERY RESPONSIBILITIES AND REQUESTS
	V. DEFENSE DISCOVERY RESPONSIBILITIES AND REQUESTS
	VI. REGULATION OF DISCOVERY
	VII. PRODUCTION
	VIII. APPOINTMENT AND PRODUCTION OF EXPERT ASSISTANTS AND WITNESSES
	IX. CONCLUSION AND PRACTICE TIPS
	X. APPENDIX
TAB L - SEARCH AND SEIZURE
	TABLE OF CONTENTS
	I. INTRODUCTION
	II. LITIGATING FOURTH AMENDMENT VIOLATIONS
	III. REASONABLE EXPECTATION OF PRIVACY
	IV. AUTHORIZATION AND PROBABLE CAUSE
	V. EXCEPTIONS TO AUTHORIZATION REQUIREMENT
	VI. EXCEPTIONS TO PROBABLE CAUSE REQUIREMENT
	VII. EXCLUSIONARY RULE AND EXCEPTIONS
	APPENDIX A: SECTION III DISCLOSURE
	APPENDIX B: GUIDE TO ARTICULATING PROBABLE CAUSE
TAB M - SELF-INCRIMINATION
	TABLE OF CONTENTS
	I. BACKGROUND
	II. FIFTH AMENDMENT & MIRANDA
	III. SIXTH AMENDMENT
	IV. ARTICLE 31, UCMJ
	V. RIGHTS WARNINGS CHART
	VI. EFFECT OF IMPLEMENTING THE RIGHTS
	VII. WAIVER OF RIGHTS
	VIII. VOLUNTARINESS
	IX. ADMITTING CONFESSIONS MADE AFTER IMPROPER POLICE CONDUCT
	X. THE EXCLUSIONARY RULE
	XI. MENTION OF INVOCATION AT TRIAL
	XII. PROCEDURE
	XIII. IMMUNITY
	XIV. CONCLUSION
TAB N - ARTICLE 32 PRETRIAL INVESTIGATIONS
	TABLE OF CONTENTS
	I. WHAT IS AN ARTICLE 32 PRETRIAL INVESTIGATION?
	II. WHAT ARE ITS PURPOSES?
	III. WHEN IS AN ARTICLE 32 INVESTIGATION NECESSARY?
	IV. SCOPE OF THE INVESTIGATION
	V. PARTICIPANTS
	VI. WITNESS AND EVIDENCE PRODUCTION
	VII. ALTERNATIVES TO TESTIMONY AND EVIDENCE
	VIII. PROCEDURE FOR CONDUCTING THE INVESTIGATION
	IX. REPORT OF INVESTIGATION
	X. ACTION BY THE APPOINTING AUTHORITY
	XI. TREATMENT OF DEFECTS
	XII. APPENDIX – ARTICLE 32 & ARTICLE 34 SUMMARY
TAB O - ARTICLE 34 PRETRIAL ADVICE
	TABLE OF CONTENTS
	I. WHAT IS ARTICLE 34 PRETRIAL ADVICE?
	II. PURPOSES OF THE PRETRIAL ADVICE
	III. CONTENTS OF PRETRIAL ADVICE
	IV. PREPARATION OF THE PRETRIAL ADVICE
	V. DEFECTS IN THE PRETRIAL ADVICE
	VI. CONCLUSION
	APPENDIX – ARTICLE 34 SUMMARY
TAB P - PLEAS & PRETRIAL AGREEMENTS
	TABLE OF CONTENTS
	I. PLEAS
	II. PRETRIAL AGREEMENTS
	III. CONCLUSION
	IV. APPENDIX – PLEAS & PTAs SUMMARY
TAB Q - COURT-MARTIAL PERSONNEL
	TABLE OF CONTENTS
	I. COURT-MARTIAL PERSONNEL: AN OVERVIEW
	II. CONVENING AUTHORITY
	III. PANEL MEMBERS
	IV. MILITARY JUDGES
	V. COUNSEL
	VI. ACCUSED
	VII. OTHER COURT-MARTIAL PERSONNEL
		A. Staff Judge Advocates
		B. Article 32 Investigating Officers
		C. Court Reporters
		D. Interpreter
		E. Bailiff
		F. Drivers
	VIII. CONCLUSION
	IX. APPENDIX − COURT-MARTIAL PERSONNEL SUMMARY
	X. APPENDIX – PRETRIAL FLOWCHART
TAB R - GOVERNMENT APPEALS AND EXTRAORDINARY WRITS
	TABLE OF CONTENTS
	I. GOVERNMENT APPEALS
	II. EXTRAORDINARY WRITS
	III. CONCLUSION
TAB S - POST-TRIAL PROCEDURES AND APPEALS
	TABLE OF CONTENTS
	I. REFERENCES
	II. GOALS OF THE PROCESS
	III. SUMMARY OF THE PROCESS
	IV. DUTIES OF COUNSEL. ARTICLE 38, UCMJ; RCM 502(d)(5)-(6); RCM 1103(b)(1)
	V. NOTICE CONCERNING POST-TRIAL AND APPELLATE RIGHTS. RCM 1010
	VI. REPORT OF RESULT OF TRIAL; POST-TRIAL RESTRAINT; DEFERMENT OF CONFINEMENT, FORFEITURES AND REDUCTION; WAIVER OF FORFEITURES. ARTICLES 57, 57a, 58, 58a, 58b, AND 60, UCMJ; RCM 1101
	VII. POST-TRIAL SESSIONS. ARTICLE 39, UCMJ; RCM 905, 1102
	VIII. PREPARATION OF RECORD OF TRIAL. ARTICLE 54, UCMJ; RCM 1103; MCM, APPENDIX 13 AND 14
	IX. RECORDS OF TRIAL; AUTHENTICATION; SERVICE; LOSS; CORRECTION; FORWARDING. ARTICLE 54, UCMJ; RCM 1104
	X. MATTERS SUBMITTED BY THE ACCUSED. ARTICLE 60, UCMJ; RCM 1105
	XI. RECOMMENDATION OF THE SJA OR LEGAL OFFICER AND DC SUBMISSION. ARTICLE 60, UCMJ; RCM 1106
	XII. ACTION BY CONVENING AUTHORITY. ARTICLE 60, UCMJ; RCM 1107
	XIII. POST-TRIAL PROCESSING TIME
	XIV. SUSPENSION OF SENTENCE; REMISSION. ARTICLE 71, UCMJ; RCM 1108
	XV. VACATION OF SUSPENSION OF SENTENCE. ARTICLE 72, UCMJ; RCM 1109
	XVI. WAIVER OR WITHDRAWAL OF APPELLATE REVIEW. ARTICLE 61, UCMJ; RCM 1110
	XVII. DISPOSITION OF RECORD OF TRIAL AFTER ACTION. RCM 1111
	XVIII. REVIEW BY A JUDGE ADVOCATE. ARTICLE 64, UCMJ; RCM 1112
	XIX. EXECUTION OF SENTENCE. UCMJ, ARTICLE 71, UCMJ; RCM 1113
	XX. PROMULGATING ORDERS. ARTICLE 76, UCMJ; RCM 1114
	XXI. ACTION BY THE JUDGE ADVOCATE GENERAL. ARTICLES 66 AND 69, UCMJ; RCM 1201
	XXII. REVIEW BY THE COURT OF APPEALS FOR THE ARMED FORCES. ARTICLES 67 & 142, UCMJ; RCM 1204
	XXIII. REVIEW BY THE SUPREME COURT. ARTICLE 67a, UCMJ; RCM 1205
	XXIV. POWERS AND RESPONSIBILITIES OF THE SECRETARY. RCM 1206
	XXV. SENTENCES REQUIRING APPROVAL BY THE PRESIDENT. RCM 1207
	XXVI. FINALITY OF COURTS-MARTIAL. RCM 1209
	XXVII. PETITION FOR A NEW TRIAL. ARTICLE 73, UCMJ; RCM 1210
	XXVIII. ASSERTIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL
	XXIX. RELEASE FOR CONFINEMENT PENDENTE LITE
	XXX. CONCLUSION
TAB T - CORRECTIONS, CLEMENCY, & PAROLE
	TABLE OF CONTENTS
	I. INTRODUCTION
	II. REFERENCES
	III. CORRECTIONS
	IV. CLEMENCY & PAROLE
	V. OFFICER RESIGNATIONS FOR THE GOOD OF THE SERVICE (RFGOS)
	VI. DISMISSAL/DROP FROM THE ROLLS/SEPARATION AFTER SIX MONTHS CONFINEMENT
	VII. RESOURCES
TAB U - URINALYSIS
	TABLE OF CONTENTS
	I. INTRODUCTION
	II. SCIENTIFIC ASPECTS OF URINALYSIS PROGRAM
	III. COMMANDERS’ OPTIONS
	IV. CONSTITUTIONALITY OF URINALYSIS PROGRAM
	V. LIMITED USE POLICY
	VI. PROSECUTING URINALYSIS CASES
	VII. DEFENDING URINALYSIS CASES
CRIMINAL LAW FACULTY, 2011 – 2012
Document Text Contents
Page 1

CRIMINAL
LAW

DESKBOOK

Procedure
The Judge Advocate General’s School, US Army

Charlottesville, Virginia
Winter 2011 - 2012

Volume I

Page 2

FOREWORD


The Criminal Law Department at The Judge Advocate General's Legal Center and School,
US Army, (TJAGLCS) produces this deskbook as a resource for Judge Advocates, both in training
and in the field, and for use by other military justice practitioners. This deskbook covers many
aspects of military justice, including procedure (Volume I) and substantive criminal law (Volume
II). Military justice practitioners and military justice managers are free to reproduce as many
paper copies as needed.

The deskbook is neither an all-encompassing academic treatise nor a definitive digest of all
military criminal caselaw. Practitioners should always consult relevant primary sources, including
the decisions in cases referenced herein. Nevertheless, to the extent possible, it is an accurate,
current, and comprehensive resource. Readers noting any discrepancies or having suggestions for
this deskbook's improvement are encouraged to contact the TJAGLCS Criminal Law Department.
Current departmental contact information is provided at the back of this deskbook.

//Original Signed//
ERIC R. CARPENTER
LTC, JA
Chair, Criminal Law Department

Page 327

C. Neither custody nor “coercive influences” are required to trigger Sixth Amendment
protections.

1. Once formal proceedings begin, police may not “deliberately elicit” statements
from an accused without an express waiver of the right to counsel. Mil. R. Evid.
305(g). This is true whether the questioning is in a custodial setting by persons
known by the accused to be police, Brewer v. Williams, 430 U.S. 387 (1977);
surreptitiously by a co-accused, Maine v. Moulton, 474 U.S. 159 (1985); through
police monitored radio transmissions, Massiah v. United States, 377 U.S. 201
(1964); or, when police ask questions of an indictee about his drug use and
affiliations, Fellers v. United States, 540 U.S. 519 (2004).

2. Mere presence as a listening post does not violate Sixth Amendment rights.
Kuhlmann v. Wilson, 477 U.S. 436 (1986) (defendant’s cellmate instructed only to
listen and report). However, if an informant initiates contact and conversation
after indictment for express purpose of gathering information about charged
activities, statements made by defendant are obtained in violation of accused’s
Sixth Amendment right to counsel and may not be used in government’s case-in-
chief. United States v. Henry, 447 U.S. 264 (1980); Kansas v. Ventris, 129 S.Ct.
1841 (2009); United States v. Langer, 41 M.J. 780 (A.F. Ct. Crim. App. 1995).

D. Questioning must relate to the charged offense.

Texas v. Cobb, 532 U.S. 162 (2001). Appellant’s Sixth Amendment right to counsel was not
violated when police questioned him, without his counsel being present, about a murder that
occurred during a burglary, after he had previously been arraigned for the underlying burglary
offense. The Supreme Court stated that the Sixth Amendment right to counsel attaches only to
charged offenses and to those offenses that would be “considered the same offense under the
Blockburger3 test,” even if not formally charged.

IV. ARTICLE 31, UCMJ

While the plain meaning of the statute would appear to answer these questions, 25 years
of litigation and judicial interpretation have made it clear that virtually nothing involving Article
31 has a “plain meaning.”4

Fredric Lederer, 1976

A. Introduction.

In 1950, Congress enacted Article 31(b) to dispel a service member’s inherent compulsion to
respond to questioning from a superior in either rank or position. As a result, the protections under Article
31(b) are triggered when a suspect or an accused is questioned (for law enforcement or disciplinary
purposes) by a person subject to the UCMJ who is acting in an official capacity, and perceived as such by
the suspect or accused. Questioning refers to any words or actions by the questioner that he should know
are reasonably likely to elicit an incriminating response. A suspect is a person who the questioner
believes, or reasonably should believe, committed an offense. An accused is a person against whom a
charge has been preferred.

B. Content of the warning. See also Mil. R. Evid. 305(c).

3 Blockburger v. United States, 284 U.S. 299 (1932). “[W]here the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.”
4 Captain Fredric I. Lederer, Rights Warnings in the Armed Services, 72 MIL. L. REV. 1, 11 (1976).

Vol. I

M-9

Page 328

A person subject to the code who is required to give warnings under Article 31(b) may not
interrogate or request any statement from an accused or suspect without first informing
him/her:

1. of the nature of the accusation;

2. that he/she has the right to remain silent; and,

3. that any statement he/she does make may be used as evidence against him/her.

(Note: Unlike Miranda warnings, there is no right to counsel.)

C. General notice requirement.

Article 31(b) may be satisfied by a general recitation of the three elements described
above. For example, Article 31(b) was satisfied when state child protective services social
worker advised the accused: he was suspected of sexually abusing his daughter; he did
not have to speak with her or answer any questions; and, anything he said could be
repeated by her in court if subpoenaed. United States v. Kline, 35 M.J. 329 (C.M.A.
1992).

D. Nature of the accusation.

1. An individual must be provided a frame of reference for the impending
interrogation by being told generally about all known offenses. “It is not
necessary to spell out the details . . . with technical nicety.” Informing the
accused that he was suspected of larceny of ship’s store funds was held sufficient
to cover wrongful appropriation of store funds during an earlier period. United
States v. Quintana, 5 M.J. 484 (C.M.A. 1978). See also United States v. Rogers,
47 M.J. 135 (C.A.A.F. 1997) (informing of “sexual assault” of one victim held
sufficient to orient the accused to the offense of rape of a separate victim that
occurred 4 years earlier).

2. United States v. Kelley, 48 M.J. 677 (A. Ct. Crim. App. 1998). Advising the
accused that he was going to be questioned about rape implicitly included the
offense of burglary. The ACCA determined that the burglary was a part of the
accused’s plan to commit the rape. Therefore, by informing the accused that he
was suspected of rape, he was sufficiently oriented to the particular incident, even
though it involved several offenses.

3. Whether the stated warning sufficiently provided notice of the accusation is tested
on the basis of the totality of the circumstances. For example, in United States v.
Erie, 29 M.J. 1008 (A.C.M.R. 1990), a rights warning for suspected use of
hashish was judged sufficient to cover distribution of hashish and cocaine. The
court found that the rights warning oriented accused to that fact that the
investigation was focused on controlled substances. See also United States v.
Pipkin, 58 M.J. 358 (C.A.A.F. 2003) (warning covering distribution of a
controlled substance was sufficient to cover conspiracy to distribute).

Vol. I

M-10

Page 654

CRIMINAL LAW FACULTY

2011 – 2012


Chair and Professor: Vice Chair and Professor:
LTC Eric R. Carpenter LTC Daniel M. Froehlich
[email protected] [email protected]
434-971-3341 (DSN 521) 434-971-3342 (DSN 521)
Subjects: Unlawful Command Influence; Case Subjects: Trial Advocacy

Analysis; Media; Capital Litigation

Professors:

LtCol Derek J. Brostek MAJ Philip M. Staten
[email protected] [email protected]
434-971-3344 (DSN 521) 434-971-3343 (DSN 521)
Subjects: Search and Seizure; Writs & Government Subjects: Discovery; Production; NJP;

Appeals; Protection of Military Installations Summary Court-Martial; Article 32
(POMI); SAUSA; Cyber Law; Findings and
Findings Augments; Sentencing and Sentencing
Augments

Mr. James G. Clark MAJ Jay Thoman
[email protected] [email protected]
434-971-3347 (DSN 521) 434-971-3348 (DSN 521)
Subjects: Victim/Witness Assistance Program; Subjects: Jurisdiction; MEJA; Speedy Trial;

Sexual Harassment/Assault Response & Pretrial Restraint; Pretrial Confinement;
Prevention; Family Advocacy Program; Article 6th Amendment (IAC); Professional
120; MRE 412-414; Lautenberg Argument; Responsibility; Military Justice In a
Cross Examination Deployed Environment; ISSFRT

MAJ Rebecca F. Kliem MAJ Megan Wakefield
[email protected] [email protected]
434-971-3179 (DSN 521) 434-971-3346 (DSN 521)
Subjects: Evidence; Classified Evidence; Experts; Subjects: Pretrial Advice; Pretrial

Demonstrative Evidence; Confrontation Agreements; Court Personnel; Pleas

MAJ Andrew D. Flor LtCol Devin A. Winklosky
[email protected] [email protected]
434-971-3345 (DSN 521) 434-971-3349 (DSN 521)
Subjects: Post-Trial Procedures; Self-Incrimination; Subjects: Crimes and Defenses; Mental

Corrections; Urinalysis Responsibility/Competence; Pleadings;
Multiplicity; Commander’s Duties and
Options

MAJ Sean F. Mangan
[email protected]
434-971-3276 (DSN 521)
Subjects: Charging Decision; Interviewing; Motions;

Voir Dire and Challenges; Opening; Direct;
Objections; Instructions

PUBLICATION DATES FOR THE CRIMINAL LAW DESKBOOK ARE: JUNE – OCTOBER – FEBRUARY.

Page 655

Criminal

Law

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