Pretrial Preparation

Detail information on pretrial preparation for summary court-martial:

1. General. After charges have been referred to trial by SCM, all case materials are forwarded to the proper SCM officer, who is responsible for thoroughly preparing the case for trial.
2. Preliminary Preparation. Upon receipt of the charges and accompanying papers, the SCM officer should begin preparation for trial. The charge sheet should be carefully examined, and all obvious administrative, clerical, and typographical errors corrected. See R.C.M. 1304. The SCM officer should initial each correction she makes on the charge sheet.h
   1. If the errors are so numerous as to require preparation of a new charge sheet, re-swearing of the charges and re-referral is required. See generally R.C.M. 603.
   2. If the SCM officer changes an existing specification to include any new person, offense, or matter not fairly included in the original specification, R.C.M. 603 requires the new specification to be re-sworn and re-referred. The SCM officer should continue her examination of the charge sheet to determine the correctness and completeness of the information on the charge sheet.
   3. The SCM, with her legal advisor, should review the charge(s) and specification(s). The SCM officer should check for proper form and determine the elements of the offense. “Elements” are facts which must be proved in order to find the accused guilty of any offense. Part IV, MCM, contains some guidance in this respect, but for more detailed guidance consult the Military Judges’ Benchbook, DA Pam. 27-9. The SCM officer should also review the evidence relating to the charges.
3. Pretrial Conference. The SCM officer should meet with the accused in a pretrial conference. The accused’s right to counsel is discussed later in this chapter. However, if the accused is represented by counsel, all dealings with the accused should be conducted through his counsel. Thus, the accused’s counsel, if any, should be invited to attend the pretrial conference. At the pretrial conference, the SCM officer should follow the suggested guide found in Appendix 9, MCM, and should document the fact that all applicable rights were explained to the accused by completing blocks 1, 2, and 3 of the form for the record of trial by SCM found at Appendix 15, MCM.
4. Advice to the accused. R.C.M. 1304(b) requires the SCM to advise the accused of the following matters:
   1. That the officer has been detailed by the convening authority to conduct a SCM;
   2. That the convening authority has referred certain charge(s) and specification(s) to the summary court for trial. The SCM officer should serve a copy of the charge sheet on the accused, and complete the last block on page 2 of the charge sheet noting service on the accused;
   3. The general nature of the charges and the details of the specifications;
   4. The names of the accuser and the convening authority, and the fact that the charges were sworn to before an officer authorized to administer oaths; and
   5. The names of any witnesses who may be called to testify against the accused at trial and the description of any real or documentary evidence to be used and the right of the accused to inspect the allied papers and immediately available personnel records.
5. Additional Rights. The accused should then be advised that he has the following legal rights:
   1. The right to refuse trial by SCM;
   2. The right to plead “not guilty” to any charge and/or specification and thereby place the burden of proving his guilt, beyond reasonable doubt, upon the government;
   3. The right to cross-examine all witnesses called to testify against him or to have the SCM officer ask a witness questions desired by the accused;
   4. The right to call witnesses and produce any competent evidence in his own behalf and that the SCM officer will assist the accused in securing defense witnesses or other evidence which the accused wishes presented at trial;
   5. The right to remain silent, which means that the accused cannot be made to testify against himself nor will the accused’s silence count against him in any way should he elect not to testify;
   6. Rights concerning representation by counsel (see subparagraph 6 below);
   7. That, if the accused refuses SCM, the convening authority may take steps to dismiss the case or refer it to trial by special or general court-martial, or dispose of the case at NJP;
   8. The right, if the accused is found guilty, to call witnesses or produce other evidence in extenuation or mitigation and the right to remain silent or to make a sworn or unsworn statement to the court; and
   9. The maximum punishment which the SCM could adjudge if the accused is found guilty of the offense(s) charged.
      1. E-4 and below . The jurisdictional maximum sentence that a SCM may adjudge in the case of an accused who, at the time of trial, is in pay grade E-4 or below, is the following: (a) Reduction to the lowest pay grade (E-1); (b) Forfeiture of two-thirds of one-month’s pay; (c) Confinement not to exceed one month or hard labor without confinement for forty-five days (in lieu of confinement) or restriction to specified limits for two months. If confinement is adjudged with either hard labor without confinement or restriction in the same case, the rules concerning apportionment found in R.C.M. 1003 (b)(6) and (7) must be followed. Given this requirement, it is unusual for a SCM officer to adjudge a combination of confinement and hard labor or restriction.
      2. E-5 and above. The jurisdictional maximum that a SCM could impose in the case of an accused who, at the time of trial, is in pay grade E-5 or above is to the following: (a) Reduction to the next lower pay grade; (b) Restriction to specified limits for two months (cannot adjudge confinement); (c) Forfeiture of two-thirds of one month’s pay.
      3. The effective date of restriction and/or extra duties is the date the convening authority (CA) approves the sentence and orders it executed. This means that the CA can neither impose not require immediate service of such punishment on the date it is adjudged by the SCM officer unless the member waives the seven day period to submit clemency matters and the CA takes his/her action immediately. See R.C.M. 1105(c)(2). Ordinary confinement, however, begins to run from the date the sentence was adjudged by the SCM officer. However, the accused may request that the CA defer confinement until action or as part of a clemency request. See R.C.M. 1306(a).
      4. Maximum Punishment Chart. E5 AND E4 AND PUNISHMENT ABOVE BELOW Confinement for 1 month or X less. Hard labor without confinement for 45 days or X less. Restriction for two months or X X less. Forfeiture of 2/3 pay per X X month for one month or less. One Reduction to the lowest grade X enlisted grade. only
6. Rights to Counsel.
   1. In 1972, the Supreme Court held, with respect to “criminal prosecutions,” that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at this trial.” Argersinger v. Hamlin , 407 U.S. 25, 37 (1972).
   2. The Supreme Court, in Middendorf v. Henry , 425 U.S. 25 (1976), held that a SCM was not a “criminal prosecution” within the meaning of the Sixth Amendment, reasoning that the possibility of loss of liberty does not, in and of itself, create a proceeding at which counsel must be afforded. Rather, it reasoned that a SCM was a brief, nonadversary proceeding, the nature of which would be wholly changed by the presence of counsel. It found no factors that were so extraordinarily weighty as to invalidate the balance of expediency that has been struck by Congress.
   3. In United States v. Booker , 5 M.J. 238 (C.M.A. 1977), reconsidered at 5 M.J. 246 (C.M.A. 1978), the C.M.A. considered the Supreme Court’s decision in Middendorf and concluded that there existed no right to counsel at a SCM. See also United States v. Kahmann , 59 M.J. 309, 315 (C.A.A.F. 2004)
   4. While the Manual for Courts-Martial created no statutory right to detailed military defense counsel at a SCM, the convening authority may still permit the presence of such counsel if the accused is able to obtain such counsel. The Manual has created a limited right to civilian defense counsel at SCM, however. R.C.M. 1301(e) provides that the accused has a right to hire a civilian lawyer and have that lawyer appear at trial, if such appearance will not unnecessarily delay the proceedings and if military exigencies do not preclude it. The accused must, however, bear the expense involved. If the accused wishes to retain civilian counsel, the SCM officer should allow him a reasonable time to do so.
   5. Booker Warnings – Although holding that an accused had no right to counsel at a SCM, the C.M.A. ruled in Booker , supra , that if an accused was not given an opportunity to consult with independent counsel before accepting a SCM, the SCM will be inadmissible at a subsequent trial by court-martial. The term “independent counsel” has been interpreted to mean a lawyer qualified in the sense of Article 27(b), UCMJ, who, in the course of regular duties, does not act as the principal legal advisor to the convening authority. Under the Booker Rule, the government needs to show that the accused either exercised his right to confer with counsel or made a voluntary, knowing, and intelligent waiver of this right. Without such a showing, a SCM will not be considered a “criminal conviction” and will not be admissible as a prior conviction under R.C.M. 1001(b)(3), nor for purposes of impeachment under M.R.E. 609, MCM. See United States v. Booker , 3 M.J. 443, 448 (C.M.A. 1977). See also United States v. Kelly , 45 M.J. 259 (C.A.A.F. 1996). While these cases would seem to allow a prior SCM’s use as a “conviction” to trigger the increased punishment provisions of R.C.M. 1003(d) if the accused had been actually represented by counsel or had rejected the services of counsel provided to him, the discussion following R.C.M. 1003(d) opines that convictions by SCM may not be used for this purpose. As the discussion and analysis sections of the MCM, it has no binding effect and represents only the drafters’ opinions. Thus, this issue remains unresolved.
7. Final pretrial preparation. At the conclusion of the pretrial interview, the SCM officer should determine whether the accused has decided to accept or refuse trial by SCM. If more time is required for the accused to decide, it should be provided. The SCM officer should obtain from the accused the names of any witnesses or the description of other evidence which the accused wishes presented at the trial if the case is to proceed. She should also arrange for a time and place to hold the open sessions of the trial. These arrangements should be made through the legal advisor to the SCM officer, and the SCM officer should ensure that the accused and all witnesses are notified of the time and place of the first meeting.
   1. An orderly trial procedure should be planned to include a chronological presentation of the facts. The admissibility and authenticity of all known evidentiary matters should be determined and numbers assigned all exhibits to be offered at trial. These exhibits, when received at trial, should be marked “received in evidence” and numbered (prosecution exhibits) or lettered (defense exhibits).
   2. The evidence reviewed should include not only that contained in the file as originally received, but also any other relevant evidence discovered by other means. The SCM officer has the duty of ensuring that all relevant and competent evidence in the case, both for and against the accused, is presented. It is the responsibility of the SCM officer to ensure that only legal and competent evidence is received and considered at the trial. Only legal and competent evidence received in the presence of the accused at trial can be considered in determining the guilt or innocence of the accused. Additionally, the Military Rules of Evidence apply to the SCM and must be followed. See M.R.E. 101.
   3. Subpoena of witnesses. The SCM is authorized by Article 46, UCMJ, and R.C.M. 703(e)(2)(C) and 1301(f) to issue subpoenas to compel the appearance at trial of civilian witnesses. In such a case, the SCM officer will follow the same procedure detailed for a SPCM or GCM trial counsel in R.C.M. 703(c). Appendix 7 of the MCM contains an illustration of a completed subpoena.
   4. Depositions – The SCM officer may also use a deposition to capture testimony if necessary. However, the SCM should seek assistance from her legal advisor to accomplish this task. See Article 49, UCMJ; R.C.M. 702.