Military Law – Week 6Jay Canham

The Sixth Amendment

6th Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”

Rule for Court-Martial 707

Speedy trial clock starts and the Accused shall be brought to trial within 120 days of the earlier of the two:

•  The swearing to of formal criminal charges…called the preferral of charges; or

•The imposition of pretrial restraint: Confinement or Restriction.

Article 10 of the UCMJ

If a confined Accused can establish that the government could readily have gone to trial much sooner, but negligently and spiteful choose not to, there is a speedy trial violation!

Speedy Trial ClauseThe Speedy Trial Clause bans only undue delays.

In the military, delays which are not held against the government include: • Delay for a competency hearing of the accused• Delays because of requested continuances by

the accused.• Delays due to pretrial motions or appeals of any

motions.• Delays due to the litigation of a complex case.

Consequences for Violating the Speedy Trial ClauseWhere the Accused is in pretrial confinement:1) Dismissal without prejudice. Case is dismissed, but

allows a future prosecution for the same offense. In this situation, you have speedy trial violation with confinement, but no Article 10 violation.

2) Dismissal with prejudice. Bars future prosecution for the same offense when you have both an Article 10 violation and confinement!

In non-confinement cases:3) If there is a Speedy Trial Violation…Military Judge

may award Dismissal with or without prejudice!

The 5th Amendment

“ …no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a Grand Jury…”

Investigating Officer’s (IO) Report

•A transcript of what was presented at the Investigation.

•Standard to be met: Reasonable grounds that an offense has been committed.

•Recommendation on the disposition of the case.

Article 32 Investigation: The Military’s Preliminary Hearing

•Prior to any service-member being sent to a GCM…the accused will have the benefit of an Article 32 Investigation; and

•Impartial investigation…to include an inquiry as to the truth of the charges; and

•Consideration of the form of charges; and

•A recommendation of the disposition of the case.

Rights of an Accused Rights of an Accused at the Article 32 Investigation:

• Rights to counsel attaches, to include a civilian attorney.

• Right to be present and confront witnesses.

• Right to be informed of the charges & view evidence.

• Right to present evidence

Normally a public hearing, but may be closed by the IO.

Creation of a General Court-Martial (GCM): 4-Step Process• First Step: The Article 32 Investigation

• Second Step: The Article 33 advice letter: Created after a review of the Article 32 Investigation and sent to the Staff Judge Advocate of the GCM Convening Authority.

• Third Step: The Article 34 Advice letter: Drafted by the Staff Judge Advocate (SJA) and is the lawyer’s review of all documents with the recommendations on how to proceed to the GCM Convening Authority.

• Fourth Step: GCM Convening Authority reviews the Article 32 Investigation, Article 33 Advice Letter and Article 34 Advice letter and decides whether to convene a General Court-martial.

Military Law – Week 6Jay Canham

The Sixth Amendment