MILITARY JUSTICE 1stSgt BRIEF

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Published on February 28, 2008

Author: craig

Source: authorstream.com

MILITARY JUSTICE:  MILITARY JUSTICE Maj Sean R. Dunn DSJA MARFORRES DSJA MARFORNORTH (504)678-2593 sean.dunn@usmc.mil OBJECTIVES:  OBJECTIVES Military Justice Refresher Investigations Article 31b Rights Pretrial Confinement Search vs. Inspection Reservists and Jurisdiction Art 112a “Tricks of the Trade” Courts-Martial:  Courts-Martial Summary Courts-Martial Special Courts-Martial General Courts-Martial Slide4:  COURT-MARTIAL OPTION CONVENING ORDER PREFERRAL SPCM REFERRAL Article 32 Hearing IO Report ART 33/34 LETTERS GCM REFERRAL Slide5:  NAVY, MARINE, COAST GUARD, ARMY & AIR FORCE TRIAL COURTS NMCCA CGCCA ACCA AFCCA (COURTS OF CRIMINAL APPEAL) CAAF (COURT OF APPEALS FOR THE ARMED FORCES) SUPREME COURT What to do with Misconduct?:  What to do with Misconduct? Who CAN report an Offense? Who MUST report an Offense? Who should Offenses be reported to? Slide7:  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 . . .” Slide8:  TYPES OF INVESTIGATIONS RCM 303 - Preliminary Inquiry CID NCIS Slide9:  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 Slide10:  OFFENSE INVESTIGATION OPTIONS No Action Non-Punitive Measures Non-Judicial Punishment Court-Martial SUMMARY SPECIAL GENERAL WHAT TO DO WITH MISCONDUCT Courts-Martial Considerations:  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):  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:  Article 31, UCMJ No person subject to the code may compel self-incrimination Requires rights warnings prior to questioning Article 31 Warnings:  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? :  WHEN MUST YOU WARN? Mil.R.Evid 305 1) Person Subject to the Code Person is suspected of offense Interrogation or request for any statement WHO IS A SUSPECT?:  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?:  WHAT IS AN INTERROGATION? Any formal or informal questioning intended to --or-- reasonably likely to elicit an incriminating response. RIGHT TO ATTORNEY:  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:  THE SPONTANEOUS CONFESSION Listening to spontaneous confessor is not an interrogation No need to warn No need to stop spontaneous confession WHAT IF?:  WHAT IF? New offense arises during questioning? Stop and Provide 31(b) rights for new offense. WHEN A SUSPECT WAIVES THEIR RIGHTS:  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:  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:  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):  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:  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:  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:  INSPECTION VS. SEARCH 4th Amendment Search? MRE 313 “Inspection” MRE 314 “Consent Search” MRE 315 “Probable Cause Search” US v. LCPL Long:  US v. LCPL Long Art 112a Search of NMCI computer Expectation of Privacy? DOD Computer Warning? How do you search a computer? RESERVISTS:  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:  RESERVISTS Drill Weekend Drug Pops – What can you do? Drill Weekend Pop:  Drill Weekend Pop NJP or Court-Martial? Reduce at CRB? ADSEP? URINALYSIS!:  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:  Defenses Not my Urine Altered Urine Innocent Ingestion Legal Use, Legal Substance Alibi Good Military Character QUESTIONS?:  QUESTIONS?

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