Mandatory Contents

UCMJ art. 34

  1. militarydefenselawyers245The Pretrial Advice is only required to include:
    1. Conclusions with respect to whether each specification alleges an offense under the code;
      1. The standard is probable cause. RCM 406(b) discussion.
      2. Conclusions with respect to whether the allegation of each offense is warranted by the evidence indicated in the report of investigations;
      3. Conclusions with respect to whether a court-martial would have jurisdiction over the accused and the offense; and []
    2. Recommendation of the action to be taken by the convening authority.
  2. Binding v. Non-Binding
    1. The first three legal conclusions are binding, meaning that if the SJA concludes that any of those three requirements has not been met (for example, there is no jurisdiction over the offense) then that/those specification(s) and/or charge(s) that are deficient CANNOT be referred.
    2. The last conclusion, the SJA’s recommendation is non-binding, and therefore the convening authority can choose to follow it, or not follow it, as he deems appropriate.
  3. Staff Judge Advocate’s Rationale/ Underlying Analysis
    1. There is no requirement that the Staff Judge Advocate include his rationale or underlying analysis regarding his legal conclusions or recommendation.
  4. Practice Tip: when preparing a Pretrial Advice, look at RCM 406 which lays out exactly what must be included in the advice, and always check RCM 406 once the advice has been prepared to make certain all of the mandatory contents are covered.
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