Block IV - Military Justice Flashcards
(164 cards)
1
Q
What AFI covers command authority?
A
AFI 51-509, Appointment to and Assumption of Command
2
Q
Command Authority is exercised by what?
A
virtue of office
3
Q
Differentiate between appointment and assumption of command (W)
A
Assumption - unilateral act taken under authority of law and regulation.
Appointment - occurs by act of President, SECAF or delegee
4
Q
Determine eligibility to assume command (W)
A
- Assigned or attached, documented by either PCS, PCA, TDY orders
- Present for duty
- Otherwise eligible and authorized to command
5
Q
Describe procedures to formalize appointment/assumption of command (W)
A
AF Form 35
6
Q
An officer may command an organization to which they are what?
A
- Assigned or attached, documented by either PCS, PCA, TDY orders
- Present for duty
- Otherwise eligible and authorized to command
7
Q
Does an officer have to be physically present to be “present for duty”?
A
No.
Being in leave status and/or temporarily away does not result in loss of authority
8
Q
Can an O-5 command an O-6?
A
No.
9
Q
Can an O-5 command another O-5?
A
Yes, if they have greater date of rank.
10
Q
What is assumption of command?
A
a unilateral act taken under authority of law and regulation
11
Q
Can an assumption of command occur when not assigned to the unit?
A
No
12
Q
How is someone appointed to command?
A
Occurs by act of President, SECAF, or delegee
13
Q
Discuss appointment of command.
A
- Permanent or Temporary
- Officer must be assigned to organization, present for duty, eligible, and senior or equal in grade to all other officers
- Officer may be appointed to command an organization to which he/she attached for TDY or detail
14
Q
What form is used to request and authorization for assumption of/ appointment to command?
A
AF Form 35, otherwise called G-Series orders
15
Q
What AFI contains instructions to complete the AF Form 35?
A
AFI 51-509, attachment 3
16
Q
When do Article 137 Briefing for Commanders occur?
A
- Prior to conducting the legal sufficiency reviews of G-Series orders
- or within 30 days of assignment of command.
17
Q
What is the difference between relief of command ‘not for cause’ and ‘for cause’
A
- Not for cause: Cannot be used for adverse actions or collateral administrative documentation, (PCS, PCA, retirement).
- For cause: may be used as basis, in addition to specific reason for relief, to support adverse actions or collateral administrative documentation.
- Loss of confidence
18
Q
State facts for determining jurisdiction over Air Reserve Component Jurisdiction (W)
A
- Must be on Title 10 orders
+MJA16 - Travel to and from the IDT site of the member.
- Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.
- Intervals between IDT on consecutive days.
- Only applicable to cases where all offenses occurred o/a 1 Jan 19.
19
Q
Explain the authority to recall reserve personnel to active duty (W)
A
- GCMCA has authority to recall
- Without SECAF approval of order to AD, an ARC member recalled may not be sentenced to confinement or required to serve a punishment that consists of any restriction on liberty during the recall period of duty.
20
Q
What are Cat B reservists?
A
IMA “IMA-Bee” Individual mobilization augmentees
21
Q
What is an IMA’s role?
A
to individually augment and support AD forces. They train with the AD Air Force.
22
Q
What is an IMA’s minimum participation?
A
24 inactive duty training (IDT) periods (12 full 8-hour IDT days) and an annual tour consisting of 12 days of AD training each FY.
23
Q
What is the minimum participation of a Cat A Reservist?
A
One weekend each month and a 14-day annual tour each Fiscal year - “Traditional reservists”
24
Q
How often must the Status of Discipline happen?
A
At least quarterly
25
Identify content requirements for status of discipline briefings (W)
- For the quarter:
- Results of CMs
- CMs processing time for courts with ROT having been forwarded in the quarter
- NJPs completed through SJA review in the quarter AND year to date (broken out by squadron, wing, NAF, MAJCOM and AF)
- Involuntary discharges
- Annually:
- Rates per thousand overall and by officer/enlisted, gender, race for courts-martial, discharges and NJPs by Wing, NAF, MAJCOM, and AF for the year
Special interest items ID'd by Wg/CC or equiv.
Training
26
Where can you find the required items for Status of Discipline (SOD)?
DAFI 51-201
27
How is a SIR labeled in email and the file name?
(CUI) NEW SIR - case number – Rank Name – Base – NO MEDIA ATTENTION
If there is media attention, remove the "No"
28
Who ultimately runs the SOD?
The installation or Wg/CC
29
Can the ADC or SVC be present for SOD?
Yes, certain portions
30
Explain the procedures required to obtain search authorizations (W)
1. SF/AFOSI calls JA w/ factual account
2. JA determines PC/no PC
3. Conference call/visit with CC/Military Judge, AFOSI/SF & JA
4. SF/AFOSI requests authorization & provides sworn statements detailing basis (search affidavit)
5. JA explains standard and provides opinion
6. CC/Military Judge makes independent decision and records it on AF IMT 1176 (Can be oral but f/u in writing)
7. Agent executes search and reports back
31
Identify issues regarding seizure of evidence, such as plain sight, inevitable discovery and inspections (W)
- Evidence in plain sight is admissible
- Child cannot consent to inspection or search
- Cannot use an inspection as subterfuge to look for evidence of a crime.
32
Differentiate between rules for searches of military facilities and property, as opposed to personal property (W)
- Military/government property (offices, buildings, vehicles, items issued for work purposes) can be inspected without search authorization.
- Items issued for personal us or personal property require a search authorization or authorization.
33
Explain "consent" with regards to searches and seizures (W)
- Consent must be given by someone who exercises ownership of the property.
- Cannot be given by a minor.
- No need for rights advisement
- Sign AF Form 1364
34
Explain the threshold for a "probable cause" determination (W)
- preponderance of the evidence (51%)
- Totality of the circumstances, reasonable belief that person or property will contain what is being searched for.
35
What Military Rule of Evidence covers "Evidence obtained from unlawful searches and seizures"?
MRE 311
36
What is a search authorization?
Express permission issued by competent Military authority to search person/area for specified property/evidence and seize property/evidence
37
What form is used for Search Authorization?
Form 1176
38
Does the government need a search and seizure authorization to search government property, abandoned property, or to seize abandoned property?
No
39
Informational purposes only:
What was the primary holding from Terry v. Ohio?
(Terry v. Ohio is one of the exceptions to requirement for warrant/ search & seizure authorization).
Terry v. Ohio, 392 U.S. 1 (1968).
"Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous."
40
What are the exclusions to needing a warrant/search & authorization?
Consent
Probable Cause (PC)
Plain view
Exigent (circumstances that requires immediate action).
Terry v. Ohio case (routine patrol stops)
41
What are examples of things that can be used to determine PC (probable cause)?
o Hearsay
o Written or oral statements
o Sworn or unsworn statements
o Information previously known (keep in mind the law of recency)
o Illinois v. Gates, Totality of the Circumstances
o Factual Basis
Independent Corroboration
Stale or Fresh information
42
Who has authority to authorize search?
- Authorized CC's (f/ people/places under their command)
--Must have control over place where property/person is to be searched, or have control over person to be searched & be impartial
- Military Judge (authorizes search of base)
- Military Magistrate
43
What is an affidavit?
a written statement confirmed by oath or affirmation, for use as evidence in court.
44
What must an CC have that is authorizing search?
Have control over place where property/person is to be searched; or
Have control over person to be searched
Be Impartial – CC can be present on scene/can know the individual and still be impartial.
45
What are some exceptions of search authorizations being required with regard to exigent circumstances?
Insufficient time
Lack of Communication
When not required by the Constitution
46
Explain the rights afforded a military member under Article 31, Uniform Code of Military Justice (UCMJ) (W)
o Protects against Self-Incrimination
“Spousal rights”
o Rights Warnings - No interrogation before first advising member of specific rights
Must inform suspect of nature of offense(s) before questioning
Must inform statements made may be used as evidence
o Penalty to government for violation of Article 31 rights
**DOES NOT** include right to counsel (5th and 6th amendment covers this)
47
Explain the precedent and authority for the right to counsel for a military member suspected of committing an offense under the 5th and 6th Amendment (W)
-5th amendment - Right to have lawyer present (custodial) Miranda v. Arizona
- 6th amendment- Right to council (triggered by initiation of adversarial judicial proceedings)
U.S. v. Duga
U.S. v. Jones
48
Restate general principles regarding confessions and admissions (W)
Confession: acknowledgement of guilt. (Whole enchilada!)
-Admission: self-incriminating statement falling short of acknowledgement of guilt.
--Ex: Accused admitting to sex happening but that the sex was consensual.
49
Who must give an Article 31 rights warning?
o Persons subject to the UCMJ
o Very broad application
o Case law has narrowed scope
50
Who is **NOT REQUIRED** to give a rights advisement?
- Healthcare professionals (but will have to report it)
- Chaplains
51
Who is required to give an Article 31 rights advisement?
– Those acting in their official capacity
Law Enforcement
Disciplinary capacity – ACC’d CC
Position of Authority -CC, CCF, etc
BX store detectives
Civilian/foreign law enforcement officer – Civilians working in agencies like OSI, SFS, etc.
52
When must Article 31 rights be given?
- When the member is suspected of an offense/ before interrogation
- Suspects stop talking and further questioning desired (large break in time or large break in time and new interrogator).
- Pre-questioning maneuvers
53
What are the contents of Article 31 rights?
o Nature of the suspected offense
o Right to remain silent
o Consequences of making a statement
o Does not have to be verbatim
o Suspect must understand and acknowledge rights
**Article 31 rights does not include the right to counsel**
54
Which amendment is the right to counsel?
5th Amendment
Miranda v. Arizona
55
What is custodial setting?
Custodial setting is being under arrest
56
If you are detained, are you under arrest and under custodial interrogation?
No
57
If the suspect does not give an unequivocal request for an attorney, does the interrogator have to stop and clarify?
No
58
What must the suspect give for interrogation to stop?
an unequivocal (definition: leaving no doubt) request for an attorney.
59
If right to counsel is invoked, can it later be waived?
YES!
60
What is an involuntary statement?
Inadmissible in evidence if obtained in violation of the self-incrimination privilege
61
Describe the definition and scope of military apprehension (W)
- Taking of a person into custody.
- Applies to individuals authorized to apprehend under R.C.M. 302(b) with respect to UCMJ offenses.
Military law enforcement
Commissioned, warrant, petty, and noncommissioned officers
NCOs shouldn’t apprehend officer unless ordered to by another officer.
o Civilians authorized to apprehend deserters
- Reasonable grounds to believe a crime has been committed/is being committed and person to be apprehended committed/is committing it. (Probable Cause)
62
Restate the types of restraint and their individual limitations (W)
o Conditions on Liberty - directing to do or refrain from doing specific acts (No Contact Order, checking in with LE desk, staying away from crime scenes).
o Restriction in Lieu of Arrest – Restrain a person by written or oral order to remain in specified limits unless otherwise directed and can still perform full military duties. (restriction to base, etc).
-- Starts speedy trial clock
o Arrest – Restraint of a person, oral or written, is an order and the order is not imposed as punishment. It directs the person to remain within specific limits. Do not perform full military duties.
--Starts speedy trial clock
o Pretrial Confinement – A physical restraint.
-- Starts speedy trial clock
63
Is ordering a person to go to OSI for questioning considered seizure/apprehension?
No
64
Who is authorized to apprehend under R.C.M. 302(b) f/ UCMJ offenses?
- Military law enforcement
- Commissioned, warrant, petty, and noncommissioned officers
- NCOs shouldn’t apprehend officer unless ordered to.
- Civilians authorized to apprehend deserters
65
What are the the types of restraint?
Conditions on Liberty
Restriction in Lieu of Arrest
Arrest
Pretrial Confinement
66
What are conditions on Liberty?
Directing to do or refrain from doing specific acts.
67
What are Restriction in Lieu of Arrest?
- Restrain a person by written or oral order to remain in specified limits unless otherwise directed and can still perform full military duties.
- Starts speedy trial clock
68
What is Arrest?
- Restraint of a person, oral or written, is an order and the order is not imposed as punishment. It directs the person to remain within specific limits. May not be required to perform full military duties.
- Triggers speedy trial clock
69
What is pretrial confinement?
- Physical restraint
- Starts the speedy trial clock
70
Identify when and how to activate special victims' investigation and prosecution capabilities (W)
1. Qualifying Offenses:
- Unrestricted reports of adult sexual assault (including penetrative and contact offenses)
- Unrestricted reports of domestic violence involving:
- strangulation or suffocation
- a dangerous weapon; OR
- resulting in a substantial or grievous bodily harm
-- Child abuse involving sexual assault and/or aggravated assault with grievous bodily harm
-------
- Legal Office provides initial notice to JAJG w/in 24 hrs of receiving allegation involving SVIP offense
- Wi/n 1 duty day, JAJG responds notify w/ preliminary determination
- W/in 48 hrs of confirmation from JAJG, initial collaboration of the SVIP team must occur
- Case update consultations must occur on a weekly basis (in person, telephonically, VTC, email)
- Case paralegal or legal office JA member must document weekly meeting in case file and AMJAMS
71
How often must SVIP meetings be documented?
Weekly in AMJAMS and case file.
72
Who makes up the SVIP team?
Judge advocate
Paralegal (must have completed PCC)
VWAP liason or coordinator
CTC
OSI
73
What must members of the SVIP team have completed?
- Completed the SAPR Program Training Requirements listed in DoDI 6495.02, to include annual and first responder training
- as possible, SJAs should consider appointing judge advocates who have attended specialized training in SA investigations & prosecutions
74
What DAFI covers SVIP?
DAFI 51-201, Administration of Military Justice
75
Identify requirements to provide SVC information IAW Privacy Act. (W)
* Records pertaining to court-martial
*Redact as required by FOUO and Privacy Act
* “minimally required” to accomplish intended use articulated in request redacted
* SVC responsible to safeguard
76
Identify victims’ rights under Art 6b. (W)
1. Reasonably protected from the accused.
2. Reasonable, accurate, timely notice of: PTC hearing, Art 32, C-M, Clemency/parole, release/escape
3. Can’t exclude from above unless: MJ/IO
4. Reasonably heard at: continuation of PTC, sentencing, public clemency
5. Confer w/ Govt counsel (in para 2)
6. Restitution as provided in law.
7. Proceedings free from unreasonable delay.
8. Treated w/ fairness, respect, privacy
9. Right to SVC for all “sex offenses”
* Expanding to DV cases
* Exception to policy w/CLSV Chief
10. Right to provide preference of jurisdiction
11. MJ appoints Art 6b rep for children
12. MRE 412/513 rights appealable
13. Art 6b violation confers right to file writ of mandamus w/Ct. of Crim. App.
* At Art 32 or trial
* MRE 412/513/615
* NEW RCM 1203(g) – TJAG will establish Writ procedures
77
Determine procedures to obtain sex assault victim preference on jurisdiction. (W)
Typically comes up from "SJA" (SJA signs) to VIC or VC as to whom the VIC wants to prosecute the crime (civilians or AF). It is not binding input.
78
Determine how to notify eligible victims of SVC services. (W)
In writing.
DAFI 51-207.
The following agencies or individuals must inform eligible victims reporting a sexual assault of the availability of VC services:
3.10.1.1. SARC;
3.10.1.2. VA (SAPR or FAP, to include DAVAs);
3.10.1.3. FAP personnel;
3.10.1.4. AFOSI/SFS investigator or agent, upon victim report and/or victim interview;
3.10.1.5. VWAP personnel;
3.10.1.6. Trial counsel;
3.10.1.7. Defense counsel;
79
Identify step by step procedures to process an exception to policy request for SVC services. (W)
Routed by local VC that goes up to Community Legal Services Victim Directorate
80
Identify notifications that are required to be provided to victims. (W)
AFI 51-207, para 6.2.2
Conclusion of the investigation;
Pre-trial confinement proceedings;
Preferral of charges;
Initial disposition decision;
Article 32 preliminary hearing;
Referral of charges or determination to not refer charges;
All court proceedings (including arraignment, motions hearing, and trial);
Withdrawal of charges;
Dismissal of charges;
Post-trial hearings;
Vacation hearings;
Clemency submissions;
Appellate filings;
Appellate hearings; and
Appellate decisions.
81
What DAFI covers victim rights?
DAFI 51-207, Victim and Witness Rights and Procedures
82
Identify the process to determine victim classification (W)
Definition means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense.
- Must determine if it's a qualifying offense
MCM, §806b. Art. 6b. Rights of the victim of an offense under this chapter (page A2-3)
-Are they military or not.
Classifications: Sexual assault, domestic violence, etc.
83
Identify considerations regarding the physical location of where to conduct the witness interview (W)
- comfortable witness is a cooperative witness
- Ask where they want to be interviewed
- wear civilian clothes or not?
84
According to DAFI 51-207, who qualifies for VC services?
(Para 3.2) VCs are authorized to provide services to victims of qualifying sex-related offenses, domestic violence offenses, and other offenses that contain elements of interpersonal violence, including but not limited to, workplace violence, under the UCMJ.
85
Identify the importance of pre-planned questions for witness interviews (W)
Appearance of professionalism and knowing the case. May negate further additional interviews.
86
Identify rules regarding audio/video recording of witness interviews (W)
We don't record because it makes it discoverable.
87
Cite examples of non-verbal behavior to watch for while conducting a witness interview (W)
o Avoiding Eye Contact
o Body Language/Body Position
o Stuttering/Stammering
o Redirect/Avoiding Questions
o Witness Statements
88
Identify how to properly prepare/authenticate witness statements (W)
1168;
Part I – Statement information (date, time, installation)
Part II – Personal Identification of person making statement
Part III – Acknowledgement of Offenses and 5th Amendment/Article 31 rights advisement (for subjects)
Part IV – Statement
Part V – Oath and signature
89
Cite examples of investigatory reports available from outside agencies (W)
SFS - reports
OSI - ROIs
Local Police reports
Medical
90
Identify procedures for processing a package for initial disposition of sexual assault allegations (non-prosecution memorandum) (W)
Wing legal -> SPCMCA -> Notification of IDA decision to GCMCA.
91
Per the SECDEF Memo, dated 20 April 2012, the Initial Disposition Authority (IDA) has been withheld from all commanders that are not at least SPCMCA's in what grade?
O-6
92
What offenses are covered by the 20 April 2012 SECDEF IDA withholding policy?
Rape
Sexual Assault
Forcible Sodomy (prior to 1 Jan 2019)
Attempts of the above offenses
93
What offenses was IDA not withheld for from the SECDEF Memo dated 20 April 2012
Aggravated SA
Abusive Sexual Contact
Attempts of above offenses
94
With regard to SPCMCA disposition decision, what **shall** they consider?
Matters transmitted (from lower CC)
CM charges (if any)
Any independent review and recommendation received
Victim(s) Input
Consultation with JA
95
Where can you find the matters that must be considered and what is optional to be considered by the SPCMCA for purposes of Initial Disposition Authority?
51-201
96
What options does the SPCMCA have with regards to Initial Disposition Authority?
No action
Admin action
NJP
Disposition of charges (Dismissing, referring, forwarding)
97
Is Preferral an initial disposition action?
No.
DAFI 51-201, para 10.2.3
Preferral is just an accusation by the commander.
98
What is the maximum amount of time allotted for the SPCMCA to notify the GCMCA of the disposition action taken for Rape, SA, Forcible Sodomy (before 1 Jan 19), Attempts of above offenses
30 days
99
Does forwarding preferral of charges to GCM considered notification?
Yes
100
What must the GCMCA do when notified of preferral or disposition by the SPCMCA?
Acknowledge the notification in writing
101
Restate the origin and applicability of the Military Rules of Evidence (MREs) (W)
o Mirroring of Federal law, Promulgated in 1980 as Ch. XXVII (27) of MCM
o Product of a 2 year effort participated in by DoD General Council, the U.S. Court of Military Appeals, the military departments, the department of transportation.
o “Mil. R. Evid.” or M.R.E. 1101 (C-Ms, 39a, Dubay)
o Amendments to Fed. R. Evid. are applicable to the military after 18 months
o Rules of criminal procedure (M.R.E. 301-321)
102
Explain processing requirements for an Article 32, Preliminary Hearing (W)
- SPCMCA appoints Art 32 Hearing Officer (PHO)
- PHO appointing order/letter
- PHO creates scheduling order
During hearing:
- ACC and VICs have right to be present
- Evidence the gov intends to present is at hearing to make PC determination.
- **If evidence of uncharged misconduct comes up, it can be investigated through the hearing.**
After hearing:
- parties have 24 hours after the closing of the hearing to submit any other matters
- PHO has 7 calendar days to create Art 32 Report (DD Form 457) and forwards to SPCMCA.
- Report can be objected to within 5 days of completion.
- SPCMCA forwards Art 32 to GCMCA for disposition (if it's going to GCMCA).
103
What are the four purposes of the Art 32 hearing?
- Whether each specification alleges an offense
- PC determination (did we believe the ACC commit the offense?)
- Jurisdiction determination
- Formulate a recommendation as to disposition
104
What's the criteria for an Art 32 Preliminary Hearing Officer (PHO)?
- Impartial Judge Advocate.
- Certified under Article 27(b)(2) and outranks TC and Dc
- Not connected to case
- Must disclose potential grounds of bias, prejudice or impropriety
105
What does the PHO complete?
- Determines date/time for hearing
- Reviews the Charge Sheet
- Determines necessary evidence/witnesses
- Causes evidence/witnesses to be produced
106
Who ensures the Art 32 hearing is recorded?
Government Counsel
107
What are the rights of the ACC?
o Be advised of the charges under consideration
o Be represented by counsel
o Be informed of the purpose of the preliminary hearing
o Be informed of the right against self-incrimination under Article 31
o Be present throughout the taking of evidence
o Cross-examine witnesses on matters relevant to the issues
o Present matters relevant to the issues
o Make a sworn or unsworn statement relevant to the issues
108
What is the DD Form 457, and what is on it?
PHO Report
o Summarized facts
o Government/Defense Counsel information
o Recording of the Hearing
o Availability of witness/testimony
o Documents considered
o Accused Mental ability to participate
o Explain Delays
o Notion if Government refused to issue investigative subpoena
109
What does the PHO conclusion on the Article 32 report include?
o Reasoning's/Conclusions
o Recommendation for modifications to the form of charges/specifications
o Analysis of supplementary information
o Statement about PHO examining evidence related to uncharged misconduct
o Makes recommendation
Then, SPCMCA forwards report to GCMCA
110
Who gets a copy of the PHO Report & Recording?
Accused (Defense Counsel) WILL get a copy
Victim gets it upon request
Provided promptly.
111
When must an objection to the PHO Report be received by?
Within 5 days of receipt.
112
Describe the contents and processing requirements for Pretrial Advice (W)
Basically answers the same 4 questions as the PHO Report.
GCMCA/JA signs the pre-trial advice
113
For SPCM's, does the pre-trial advice have to be in writing?
No.
114
Before a SPCM is referred, what must the SPCMCA do?
Consult with A JUDGE ADVOCATE.
115
for GCM's must the pre-trial advice be in writing?
Yes. It must be signed by SJA (unless disqualified) AND provided to the defense and accused.
116
What is covered or answered in pre-trial advice for a GCM?
- Each specification alleges an offense under the UCMJ
- There is probable cause to believe the accused committed the offense charged
- There is jurisdiction over the accused and offense(s)
- Recommended disposition
117
What are the GCMCA's options regarding pre-trial advice?
- Dismiss all or part of charge(s)
- Forward to a subordinate or superior CC for disposition
- Refer charges to a SCM, SPCM/SPCM by MJ Alone, or GCM or
- Direct further investigation
118
Explain processing procedures for Request for Discharge in Lieu of Trial by Court-Martial (Chapter 6) (W)
Chap 6:
- 25 workdays, request from ACC
- SPCMCA may:
-- After Art 32 and the report isn't forwarded, SPCMCA can deny
-- After Art 32 & report has been forwarded, SPCMCA can only make a recommendation.
119
Determine processing requirements for officer Resignation for the Good of the Service (RILO) requests (W)
RILOs:
After referral- within 30 days the ACC must submit and it is timely.
- JAJI gives green light to proceed with court
- Processing goal f/ RILO - 60 calendar days
- Starts with Base JA ->Wg/CC who creates their endorsement -> GCMCA -> MAJCOM provides endorsement -> JAJM -> HQ/AFPC ->SECAF
- Submitted before referral, any reviewing CC can deny
- Submitted after referral, only SECAF can approve or deny.
120
Determine procedures for processing Plea Agreements (W)
* Procedure
o Negotiation - May be initiated by CA, SJA, ACC, DC, or TC.
o Formal Submission by ACC
o CA can accept, reject, or make counteroffer (re-negotiate)
o Withdrawal
-- ACC can withdraw anytime prior to sentence announcement
-- If MJ has accepted plea and ACC wants to back out, DC will have to advocate and has good reason to backout.
-- Convening Authority can withdraw from agreement anytime prior to substantial performance by the ACC of promises contained in the agreement.
121
Discuss the contents and signatory parties to a Plea Agreement (W)
Promises by ACC
Promises by Convening Authority
Prohibited/Permissible Terms & Conditions - CA cannot require ACC waive their right to counsel, right to speedy trial, right to post-trial appellate rights.
* Signatory parties
o Convening Authority or delegee (SJA or TC)
o Defense Counsel
o Accused
122
Identify types of immunity and procedural requirements for processing grants of immunity (W)
1. Transactional
* Rarely granted
* Immunity from courts-martial f/ one or more offenses under the code.
2. Testimonial
* More commonly granted
* Immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial.
-GCMCA is ultimate authority for military members
- DoJ is ultimate authority for civilian members
123
Who is the approval authority for immunity?
GCMCA, which can be delegated to SPCMCA.
If it's a SPCM, still must have buy in from GCMCA.
124
Who is the approval authority for immunity for civilians participating in a court-martial?
Convening authority must get buy-in from DOJ (Depart. of Justice)
125
What is the process for a Military immunity?
- GCMCA is the approval authority.
- Can be delegated to SPCMCA
- SPCMCA must get GCMCA buy-in
126
What is the process for getting immunity for a civilian?
GCMCA (or if delegated, the SPCMCA) sends request to JAJG (and courtesy copies the MAJCOM/JA, if it's SPCMCA) ->
JAJG sends it to DoJ (must be sent at least 30 days ahead of testimony)
127
Explain the purpose of the Victim and Witness Assistance Program (VWAP) (W)
1. Provides guidance for the protection & assistance of victims and witnesses and enhances their roles in the disciplinary process, and promotes recovery of victims.
2. Mitigate the physical, emotional, and financial hardships suffered by victims and witnesses of offenses investigated by DAF authorities.
3. Foster cooperation of victims and witness within the military criminal justice system; and
4. Ensure best efforts are made to accord to victims of certain enumerated right (Article 6b).
128
Describe the roles and responsibilities within the Victim and Witness Assistance Program (VWAP) (W)
the LRO
o Local Responsible Official (LRO) – Wg or Installation/CC (first DAF CC with SPCMCA authority)
- Wg/CC has ULTIMATE authority over program
- Delegates in writing to SJA
- SJA can delegate to VWAP Coordinator
129
Describe the roles and responsibilities within the Victim and Witness Assistance Program (VWAP) (W)
SJA / VWAP / Liason
- ID vics/wit’s from blotters, etc
- Coordinate delivery of services required by VWAP
- Provide resources for the program
- Establish and chair the VWAP council
- Memorandum must be signed by LRO establishing the council. Council meets at least annually.
- Ensuring VICs and WITs receive notifications listed within Chapter 6 of 51-207,
* Monthly
* Conclusion of investigation, PTC proceedings, Preferral, initial disposition decision, Art 32 hearing, Referral or determination not to refer, all court proceedings (arraignment, motions hearing, and trial), Withdrawal of charges, dismissal of charges, post-trial hearings, vacation hearings, clemency submissions, appellate filings, appellate hearings and appellate decisions.
130
Identify the forms and their purpose to provide to victims and witnesses of crimes (W)
DD Form 2701 – Initial info f/ VICs and WITs of Crime
DD Form 2702 - Court-Martial Information for Victims and Witnesses of Crime
DD Form 2703 - Post-Trial Information for Victims and Witnesses of Crime
DD Form 2704 - Victim/Witness Certification and Election Concerning Prisoner Status
DD Form 2705 - Notification to Victim/Witness of Prisoner Status
130
Describe the roles and responsibilities within the Victim and Witness Assistance Program (VWAP) (W) - VWAP Council
- Ensure agencies are trained and VICs get services they need
- Follow interdisciplinary approach
131
Explain requirements for preparing Annual Victim and Witness Assistance Program (VWAP) Reports (W)
* DD Form 2706, Annual Report on Victim and Witness Assistance, MAJCOM submits 15 Feb every year. TJAG submits 15 March each year
* Record of each case involving victim, witnesses, or others entitled to notice (DD Forms 2701-2704)
* Submission requirements
132
Describe the purpose of Victim Transitional Compensation (W)
To support/ encourage dependents who are VIC of abuse to come forward. Previously not reported due to fear of loss of income.
133
Determine eligibility for Victim Transitional Compensation (W)
Those who experience dependent abuse.
1. Spouse (current spouse or former spouse if offense occurred while married)
2. Dependent children:
* An unmarried child, including an adopted child or a stepchild, who was residing with the military member at the time of the abuse offense, and who is:
o Under 18 years of age.
o 18+ & is incapable of self-support due to a mental or physical incapacity that existed before the age of 18 and who is currently dependent on the member for over one-half of the child's support or was dependent on the member for over one-half of the child's support when a punitive or other adverse action was carried out on the member;
o or Carried during a pregnancy at the time of the dependent-abuse offense and was subsequently born alive to either the spouse or former spouse during or after the dependent-abuse offense
134
Explain the procedures to assist a victim with requesting an expedited transfer (W)
1. Request initiated through Sq/CC, starts 72 hour timeline
2. Sq/CC makes recommendation memo f/ Wg/CC with regard to approval or disapproval
3. Wg/CC usually favors request, and gets advice from SJA
4. Wg/CC forwards memo to SARC who provides to VIC, stopping 72-hr memo
5. VIC submits request to AFPC for processing, if approving.
6. If denied, appellate authority is the MAJCOM Deputy Commander.
Victim Liason is authorized to assist with an ET process/request
135
Explain the purpose and contents of a findings worksheet (W)
Provides an easy and tailored worksheet so that members can easily relay their findings regarding charge(s) and specification(s) of guilt or not, substitutions, deletions, lesser included offenses, and in proper format.
o Specification Findings options
Guilty
Guilty with exceptions/substitutions
Not Guilty but guilty of a lesser included offense (LIO)
Not Guilty
Not Guilty by reason of lack of mental responsibility
o Charge Findings options
Guilty
Not Guilty, but guilty of another charge
Not Guilty
Not Guilty by reason of lack of mental responsibility
Exceptions and Substitutions
136
Explain the purpose and contents of a sentencing worksheet (W)
Tailored to maximum punishments allowed by charges and offenses. Considers forum and status of accused
137
Choose the appropriate funding authority for the different category of witnesses (W)
1. Intra-Command Witness – Within same MAJCOM (think Convening Authority).
Paid by convening authority.
2. Inter-Command Witness – Outside MAJCOM (think differs from your MAJCOM).
Paid by JAJM through WFMS (witness Fundings Management System)
138
Differentiate between travel order requirements based on the category of witness (W)
DOD witnesses - get orders from us to be present. They process in DTS.
Civilian witnesses - we provide authorized travel orders through DTS.
139
Cite examples of steps required to ensure witness travel arrangements are accomplished (W)
1. Ensure we have funding for each type of witness.
2. Lodging and transportation are setup.
140
Explain processing requirements for an expert witness request (W)
1. Base office and NAF will have procedures for this.
2. Build package for funding approval
3. Must have MOA
141
Discuss subpoena preparation and service requirements (W)
* Pre-referral Investigative Subpoenas (electronic records like Snapchat, bar receipts, etc)
GCMCA can issue, or Military Judge. Can be delegated in writing to a SPCMCA
To get a judge, submit a request to CDO who would appoint a judge.
Separate subpoena for each thing (Ex: 1 f/ Snapchat, 1 f/ Tinder, etc).
* Subpoenas – DD Form 453 ("come get me")
Informal Service: DD Form 453, given to individual.
Formal Service:
- Can bring OSI, Bring 453-1 (travel orders), 453 (subpoena), and witness fee ($40) check. Must be informed on how to obtain reimbursement for travel expenses.
-If mailed to OSI near individual for service, must include postage for return addressed to Trial Counsel. Which sets up for warrant of attachment.
142
Discuss Warrant of Attachment
* Warrant of Attachment – DD Form 454. (Signed by Mil. Judge).
- Failure to Appear: violation of Article 47, UCMJ
- Offender may be tried in district court under a different statue from Article 47
- Utilize U.S. Marshall service to compel any witness over the age of 18.
- Compel witness to appear or produce evidence
- Issuance of Warrant of Attachment
143
Where can you find the table for funding sources for specific members?
AFMAN 65-605, Table 10.2
144
How are expert witness fee's paid?
SF 1034
145
Explain voluntary appellate leave and the responsibilities for tracking individuals (W)
- Member may request to take voluntary excess leave (to Convening Authority) pending CA Decision on Action
- Before CADAM
- Reviewed by Convening Authority
146
Explain involuntary appellate leave and the responsibilities for tracking individuals (W)
o Adjudged sentence includes a punitive discharge
o If CA DOES reduce, commute, or suspend punitive discharge, terminate voluntary excess leave and return ACC to duty
o If CA does NOT reduce, commute, or suspend punitive discharge, terminate voluntary excess leave and place on involuntary excess leave
147
Explain processing appellate leave overseas
CA reassigns member to FSS at the base nearest to appellate leave address provide by the ACC
Losing CC directs ACC to travel from overseas location to either appellate leave address or gaining unit after out-processing
SJA for CA ensures signed copy of this letter, ACC’s receipt & any address changes, is sent to servicing FSS & JAJM, JAJA, SPCMCA/SJA of gaining unit, GCMCA/SJA of gaining unit, and the gaining/excess leave FSS/CC
148
Explain excess appellate leave processing for stateside
o CA or SJA, if delegated, orders ACC to take excess leave
o CA sends a letter informing ACC of entitlements, status & responsibilities
o SJA for CA ensures signed copy of letter, ACC’s receipt & any address changes, is sent to servicing FSS & JAJM.
149
Describe procedural rules regarding proper assembly of Records of Trial (ROT) (W)
SEE CHECKLIST
- First volume only 1" (for appellate documents)
- All following volumes 1.5"max
- Backing on each volume
o DD Form 490
o Entry of Judgement
o (STR)
o Action, if any, by the convening authority under R.C.M. 1109 or 1110
o Verbatim recording of the court-martial proceedings
o Original Charge Sheet (or a duplicate)
o Copy of Convening Order & Amendment
o Findings Forum Elections
o Sentencing Forum Elections
o Exhibits
150
Determine proper arrangement of attachments in a Record of Trial (ROT) (W)
SEE CHECKLIST
* Deferment/waiver requests
* Receipts from ACC/DC/Victim
* Waiver/withdrawal of appellate review
* RCM 1106/1106a matters (submission of matters)
* Pretrial Allied Papers
-- Chapter 4 Request/RILO & Action
-- Pretrial Advice
151
Identify basic facts about various types of court proceedings (W)
* Rehearing - Generally refers to a proceeding ordered by an appellate or reviewing authority on the findings and the sentence or on the sentence only
- Members – no same members of the panel. Would not use those who were removed through voir dire as well.
- Military Judge – can be the same from the first hearing.
* DuBay - Post trial hearing ordered by an appellate or convening authority for the limited purpose of obtaining further evidence on a matter under consideration by the court.
* Contempt - Contempt Definition: any person who uses any menacing word, sign or gesture in the presence of the judicial officer during the proceeding; disturbs the proceeding by any riot or disorder; or willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding may be punished for contempt
152
Who are the punishment authorities for contempt?
- Judge of the Court of Appeal of the Armed Forces (CAAF)
- Judge of the Air Force Court of Criminal Appeal (AFCAA)
- MJ detailed to a court martial
153
Identify basic facts about the record of trial for various types of court proceedings (W)
1. Rehearing – original ROT and any copies must remain intact, except for the documents needed for reintroduction (charge sheet..etc)
- Any document withdrawn from original ROT should be substituted in the original ROT and all copies with a description of the document, reasons for withdrawal, and new location.
2. DuBay
- Verbatim transcript, unless otherwise directed by the authority order the hearing
- Certify transcript the same way as required for the ROT.
3. Contempt
- Record of the hearing must be included in the ROT
4. Labeling - Volumes generated as the result of a rehearing or a DuBay hearing are placed on top of the original ROT and the original volumes are renumbered accordingly.
154
Explain procedural rules for composing Entry of Judgement (EOJ) (W)
- Use templates, checklists off FLITEKM, distro list.
155
Explain distribution process for the Entry of Judgement (EOJ) (W)
- Use 1373 for distro to appropriate organizations.
- Distro IAW listing off FLITEKM
156
Determine the types of courts-martial cases that are reviewed by a judge advocate under Article 64, UCMJ (W)
Art. 64 = Nintendo 64 (kids games) like Summary C-M's.
- SCM w/findings of guilt
- reviewed by any JA at GCM level
157
Determine the types of courts-martial cases that are reviewed by a judge advocate under Article 65(d), UCMJ (W)
- Reviewed by JA at GCM level
- Any GCM/SPCM where accused waived or withdrew appeal to AF Court of Criminal Appeal (AFCCA, Art. 66)
- ADC failed to file timely appeal
- Any GCM/SPCM where adjudged sentence did not exceed 6 months confinement & punitive discharge was not adjudged
158
Determine the types of courts-martial cases that are reviewed by TJAG under Article 69, UCMJ (W)
- TJAG review
- appellate review not been waived or withdrawn
-Any GCM with no punitive discharge approved
- Confinement for less that 1 year
159
Determine the types of courts-martial cases that are reviewed by the Air Force Court of Criminal Appeals (AFCCA) under Article 66, UCMJ (W)
"Get your kicks from route 66"
- AFCCA review (highest Air Force court)
- Extends to death (automatic review);
- Includes a dismissal of commissioned officer, cadet, and midshipman, dishonorable or bad-conduct discharge (automatic review);
- Includes confinement for two years or more (automatic review);
- Timely appeal submitted by an accused under Article 66(b)(1)(A) in which the sentence extends to confinement for more than six months and is not subject to automatic review;
- Cases referred to it by TJAG under R.C.M. 1201(k)(1)(A) following an Article 69 review; and
- Timely appeals by an accused in a case where TJAG sent the case to the Air Force Court of Criminal Appeals for review.
160
Determine the types of courts-martial cases that are reviewed by the United States Court of Appeals for the Armed Forces (CAAF) under Article 67, UCMJ (W)
- CAAF (highest military court)
- Cases in which death was affirmed by AFCCA
- All cases reviewed by AFCCA that TJAG orders sent to USCAAF for review
- Accused petitions the court after Art 66 (AFCCA) review is complete and the petition is granted
161
Determine the types of courts-martial cases that are reviewed by the United States Supreme Court under Articles 67(a), UCMJ (W)
*Supreme Court review
* Accused may petition Supreme Court after all lower courts have completed their review
* Petition for review is considered filed the date the accused places the petition in the mail or delivers it to the court in person
* When CAAF decides adversely to appellant.
162
Outline the notification process for appellate court decisions (W)
* Art 64 (GCM SJA Legal Office) and 65(d) (GCM SJA Legal Office Appointed by TJAG) – JA at GCM legal office completes review & annotate on the original and copies of the ROTs. The GCM legal office then creates and completes certification of final review and forwards to base legal office for distribution.
* *Note: For case reviewed under Article 65(d) where corrective actions are required by TJAG forward the ROT to JAJM who will notify the accused*
* Article 69 (TJAG), Article 66 (AFCCA), Article 67 (CAAF) & Article 67a (U.S. Supreme Court) – upon receipt of the order from the appellate court,
- JAJM completes the certification of final review and notifies the SJA of the convening authority at the time of the trial who will then distribute it in accordance with the STR/EOJ distribution checklist within 14 days of receipt of certification of final review.
163
Recall basic rules for preparing, obtaining, and maintaining photographic evidence (W)
- Replaces physical evidence
- Real evidence only required in ROT if essential to appellate process.
- 5x7 Color
