Volume 4 Flashcards
(409 cards)
1
Q
What does the term “jurisdiction” mean?
A
The power to hear a case and to render a legally competent decision.
2
Q
Could James Smith be court-martialed for an offense committed subsequent to his discharge? Explain.
A
Yes, if he committed additional offenses while in military custody for fraudulently obtaining a discharge
3
Q
What factor establishes the court-martial jurisdiction over the accused?
A
Jurisdiction depends solely on the accused’s status as a member of the armed forces.
4
Q
Technical sergeant (TSgt) Carlin committed an assault upon Mr. Alvin Redman, a civilian, while off base. Can TSgt Carlin be tried by court martial? Explain.
A
Yes, as long as TSgt Carlin was subject to the UCMJ at the time of the offense and at the time of trial.
5
Q
Is it possible for the AF and civil courts to try an individual for the same offense? Explain.
A
Yes, if the offense constituted a crime under the UCMJ and civil statutes, and the ends of justice could be met in no other way
6
Q
How may the statute of limitations be tolled?
A
By the charges being received by the officer exercising SCM jurisdiction within the specific time period.
7
Q
Under Article 2, UCMJ, as a result of the NDAA f/ FY 1987, when does the AF exercise court-martial jurisdiction over AFR and Air National Guard personnel?
A
When reservists are serving on active duty or IDT and
when Air National Guard members are serving in federal status.
8
Q
Can a reservist be tried for an offense committed on IDT that has terminated? Explain.
A
Yes, as long as the alleged offense was committed during the period of active duty or IDT and the reservist’s military status has not been completely terminated after the commission of the offense.
9
Q
Who can order a reservist to active duty for court-martial purposes when the reservist is performing duties at a reserve unit?
A
The supporting active duty GCMCA in accordance with the applicable host-tenant support agreement.
10
Q
If a reservist is to be tried by GCM or SPCM, when must he or she return to active duty?
A
Prior to arraignment at the trial
11
Q
How do the procedures for conducting an SCM for a reservist differ from those of a special or general court-martial?
A
A reservist can be tried by an SCM while on active or IDT but must be on active duty status when being tried by a special or general court-martial.
12
Q
When may a member of an armed force be tried by a court-martial convened by a member of another armed force?
A
When that member is serving as a member of a unified or specified combatant command.
13
Q
The findings in the President’s Task Force on Victims led to the passage of what three acts?
A
VWPA of 1982, the VOCA of 1984, and the VRRA of 1990. (WOR)
14
Q
What are the six key components of the VWPA of 1982?
A
(1) Victims receive prompt social and medical services.
(2) Victims are notified of important criminal justice proceedings and scheduling changes.
(3) The prosecution can obtain views of victims of serious crimes for plea bargaining and pretrial release.
(4) Encourage employers to continue to pay victims and witnesses for work absences to assist investigations and prosecutions.
(5) Training law enforcement personnel in victim assistance.
(6) Informing victims or witnesses on legal steps for protection from intimidation.
15
Q
Which act created the Crime Victims Fund?
A
The VOCA of 1984.
16
Q
What criteria must victims of crimes meet to be entitled to compensation from the Crime Victims Fund?
A
Be innocent of wrongdoing;
report the crime promptly to the police;
cooperate with the criminal justice system, and
submit a timely application through the state victims’ compensation agency.
17
Q
What was the first legislation that contained a listing of rights for victims of crimes?
A
VRRA of 1990.
18
Q
Under the VRRA of 1990, what are the rights for victims of crimes?
A
(1) To be treated with fairness and with respect for the victim’s dignity and privacy.
(2) To be reasonably protected from the accused or suspect.
(3) Be notified of court-martial proceedings.
(4) Be present at all public court-martial proceedings, unless the military judge determines the victim’s testimony would be materially affected if the victim heard other testimony.
(5) Confer with trial counsel in the case.
(6) Information about the accused’s conviction, sentencing, imprisonment, and release.
(7) Appropriate restitution or compensation.
19
Q
What are the objectives of the VWAP?
A
(1) Mitigate the physical, psychological, and financial hardships suffered by victims and witnesses of offenses investigated by AF authorities.
(2) Foster cooperation of victims and witnesses within the military criminal justice system.
(3) Ensure best efforts are made to give to victims of crime certain enumerated rights.
20
Q
Who is designated the LRO at installation level? To whom is this responsibility normally delegated?
A
Each installation commander; the SJA.
21
Q
When does AF VWAP normally apply?
A
In all cases in which criminal conduct adversely affects victims or in which witnesses provide information regarding criminal activity if any portion of the investigation is conducted primarily by the DOD components.
22
Q
Who is responsible for providing the victim with a victim information packet?
A
Victim liaison.
23
Q
What form does law enforcement and investigative person provide to victims and witnesses at the earliest opportunity after identification of a victim/witness of a crime?
A
DD Form 2701, Initial Information for Victims and Witnesses of Crime
24
Q
What is the purpose of the DD Form 2704, Victim/Witness Certification and Election Concerning Prisoner Status?
A
In cases where the accused is sentenced to confinement, the victim/witness uses this form to indicate whether or not to exercise the right to be notified when the inmate is moved to a new facility, to receive prior notice of parole hearings, and to receive notice of accused’s release from confinement.
25
What is transitional compensation?
Monthly payments and other benefits for dependents of members who are separated for dependent abuse.
26
What criteria must be met to receive transitional compensation under 10 U.S.C. § 1059?
Individuals must be dependents of members of the Armed Forces who have been on active duty for more than 30 days and who after 29 November 1993 are separated from active duty under a court-martial sentence resulting from a dependent-abuse offense, administratively separated from active duty if the basis for separation includes a dependent-abuse offense, or sentenced to forfeiture of all pay and allowances by a court-martial which has convicted the member of a dependent-abuse offense
27
What situations would require transitional compensation to terminate?
When a spouse remarries, if the member lives in the same house as the spouse or dependent child to whom compensation is payable, or if the victim was a dependent child and the installation commander finds the spouse actively participated in the conduct constituting the criminal offense or actively aided or abetted the member in such conduct against the dependent child.
28
What conditions must be met for a former or legally separated spouse to receive compensation under the Uniformed Services Former Spouse Protection Act?
The member had 20-plus years of active service.
29
When must legal offices submit reports on victim and witness assistance to their MAJCOM?
By 15 February each year.
30
What does placing a member on administrative hold ensure?
His or her presence at trial and prevents PCS, retirement, or separation
31
Which AFI lists assignment availability codes needed to place a member on administrative hold?
AFI 36–2110, Total Force Assignments.
32
Once an administrative hold memorandum is signed, where is a copy sent to ensure the member is placed on hold?
Send the letter to the MPS.
33
Define conditions on liberty, arrest, restriction, and PTC.
Conditions on liberty—orders by a commander to an individual to do or refrain from doing specified acts.
Arrest—the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits.
Restriction—a moral rather than a physical restraint of an accused. Unlike arrest, the person will perform full military duties and activities while restricted.
PTC—a physical restraint imposed by order of competent authority, depriving a person of freedom pending the disposition of charges.
34
Who may impose pretrial restraint?
Only a commanding officer to whose authority the individual is subject may order a civilian or commissioned and warrant officers into pretrial restraint. Any commissioned officer may order pretrial restraint of an enlisted person.
35
What must first be determined before a person may be ordered into restraint before trial?
Probable cause.
36
How is pretrial restraint, other than PTC, imposed on a person?
By notifying the person either orally or in writing of the restraint, including the terms and limitations
37
What information must a person placed in PTC be informed of?
The nature of the offenses for which held, the right to remain silent and that any statement made by the person may be used against him or her, the right to retain civilian counsel at no expense to the United States and the right to request assignment of military counsel, and the procedures by which PTC will be reviewed.
38
What is the first notification that must take place in the PTC review process?
Unless the commander of the prisoner ordered the PTC, the confinement facility will, within 24 hours after commitment, inform the member’s immediate commander the name of the prisoner, the offenses charged against the prisoner, and the name of the person who ordered or authorized confinement.
39
When must the member’s commander decide whether to continue PTC?
No later than 72 hours after the commander orders a military member into PTC or after receipt of a report
that a member of the commander’s unit has been confined.
40
Regarding PTC, What is the next step after the member’s commander completes his or her review memorandum?
The memorandum is forwarded to the PCRO through the SJA and SPCMCA.
41
When must the PCRO make the determination whether to continue PTC?
Within seven days of the imposition of PTC under military control.
42
When must the PCRO complete their memorandum? What must it contain?
Within 24 hours of making the PTC decision. It must outline the findings and conclusion on which the decision was based.
43
Within how many days from preferral of charges or imposition of restraint should a person be brought to trial or risk dismissal of the charges if a delay is not approved in advance?
120 days.
44
Who has the authority to apprehend persons subject to the UCMJ? What rule governs this?
All commissioned officers, warrant officers, petty officers, NCOs, and military law enforcement officials. R.C.M. 302.
45
When probable cause exists to apprehend, what is the first thing you should do when apprehending that person?
Clearly notify the person being apprehended that he or she is in custody.
46
What causes a preliminary inquiry?
A report or complaint.
47
What is the difference between an “authorization to search” and a “search warrant”?
An “authorization for search” is express permission, written or oral, issued by a competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person.
A “search warrant” is express permission to search and seize issued by competent civilian authority
48
What may probable cause determinations for searches be based on?
Written statements, oral statements (made in person or via telephone, including hearsay), or information is known by the person authorizing the search as long as it does not impugn his or her impartiality.
49
When does probable cause to seize property or evidence exist?
When there is a reasonable belief the property or evidence is an unlawful weapon, contraband, or evidence of a crime or might be used to resist apprehension or to escape.
50
What is a chronology?
The arrangement of events in order of occurrence.
51
If during the scope of the investigation additional information is discovered that could reveal additional misconduct what should you do?
Consult with your attorney immediately to see if the scope of the investigation should be expanded.
52
What are the two types of evidence from which members may find the truth as to the facts of a case?
Direct and circumstantial.
53
What type of evidence is discovered as a result of illegally obtained evidence and is therefore inadmissible because of the primary taint?
Derivative.
54
What form is used to record a detailed description of all evidence and to maintain a complete chain of custody accounting of all personnel who handled the evidence?
AF Form 52, Evidence Tag.
55
What is the chain of custody?
The movement and location of real evidence, and the history of those persons who had it in their custody, from the time it is obtained to the time it is presented in court.
56
In cases where an ROI is published, within how many days of the date of discovery of the offense should an ROI be completed for a GCM and for a SPCM?
75 days for a GCM and 30 days for a SPCM.
57
Who typically acts as the custodian for all ROIs?
NCOIC, military justice.
58
When does involuntary self-incrimination occur?
When the admission is not the product of the accused’s informed free choice and cannot be used against the accused in most cases.
59
What rule affords members the right to consult with counsel prior to an interrogation?
M.R.E. 305.
60
What are the three specific reasons why you interview a witness?
Verify or corroborate previously learned information; identify any additional witnesses; and discover details of offenses committed but not previously known.
61
During a witness interview, what affects the quality of the information you receive?
The witness’ ability to recall correctly and relay facts accurately.
62
List the reasons why a witness/victim may be reluctant to talk.
Fear of involvement, inconvenience, resentment, and personality conflicts between the interviewee and interviewer.
63
When conducting an interview of a witness (rather than a victim, complainant, or suspect), what should the witness be able to tell you concerning the incident?
Who committed the offense, how it was committed, or when it was committed.
64
What should you do prior to conducting a witness interview?
Prepare for the interview by becoming familiar with the case, researching the background of the interviewee, and determining what information will be sought.
65
When should you plan to conduct the interview session?
As far in advance as possible
66
What is the first step in conducting an interview?
Establish rapport.
67
List three common approaches you may use during an interview.
Direct, indirect, and alternating
68
When can the prosecution compel a civilian witness to testify?
After referral of charges, only then does the prosecution have subpoena authority.
69
What is the final step in the interview process? What does it involve?
Closing the interview. Review the information and clarify any points that are in contradiction to previously obtained information or are just unclear or vague, display appreciation for the cooperation of the interviewee, provide the interviewee one last opportunity to provide information about matters that have not been specifically covered, and provide your contact information.
70
What kind of identifying material must a statement contain about the witness?
Full name, SSN, permanent and temporary addresses, work and home telephone numbers, and his or her future availability.
71
What standard is used to “test” evidence during the legal review for sufficiency of evidence?
The test for legal sufficiency of the evidence is whether, when considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.
72
What type of guidance is provided by the M.R.E.?
On evidentiary rules applicable in a court-martial.
73
Into what five parts does the MCM divide the punitive articles (77 through 134)?
(1) Text of the statute;
(2) elements of the offense;
(3) an explanation;
(4) maximum permissible
punishments; and
(5) sample specifications.
74
If three of four elements of an offense are met, can the accused be charged with that offense?
Explain.
No. All elements of the offense must be met before the accused can be charged for violating the offense.
75
What task must you accomplish before choosing the punitive article(s) you believe a member
may have committed?
You must read through all the evidence.
76
After you narrow down the punitive article(s) by reviewing the information in the MCM, Appendix 2, Subchapter X, what is your next step in determining the appropriate punitive article to charge?
Go to Part IV of the MCM to check the evidence against the elements of the offense.
77
What is the purpose of a proof analysis?
It provides a brief summary of key issues relating to pending court action.
78
What information should be in the proof analysis?
(1) Charge(s) and specification(s).
(2) LIOs.
(3) Maximum punishment.
(4) Elements to the charge.
(5) Evidence to prove each element.
(6) Any information regarding potential defenses.
(7) Any notes of potential evidentiary problems.
79
What is the first step in preparing a proof analysis?
List the charge and the elements to the charge the accused has violated.
80
Why do you refer to the Military Judges’ Benchbook if the elements of the specification differ from those in the MCM?
This is the book the judge will use during court proceedings.
81
What basic questions regarding evidence do you need to consider before trial?
What evidence will your team present at trial? Is the evidence supporting the case in chief or for use in rebuttal? Who is the custodian of the evidence? How do you get it to trial? Consider the need for certified copies, sealed evidence, and so forth, and chain of custody issues. Evidence storage in lengthy trials? How will you return the evidence to the investigative agency post-trial?
82
Who has the primary responsibility for evidence strategy?
Trial counsel.
83
State the purpose of NJP.
Article 15, UCMJ provides commanders with an essential and prompt way of disposing of minor disciplinary infractions.
84
What are the factors that determine if an offense is “minor”?
Nature of the offense; circumstances surrounding its commission; age, rank, duty assignment, record, and experience of the offender; and the maximum sentence imposable if tried by a GCM.
85
Who has the final authority on whether or not to impose NJP?
The commander bears sole responsibility for the final decision.
86
What proof should be considered before initiating action under Article 15, UCMJ?
While no specific standard of proof applies to NJP proceedings, including appeals, commanders should recognize a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction. Whether such proof is available should be considered before initiating action under Article 15, UCMJ.
87
What document must be published before a successor can have NJP jurisdiction in the temporary absence of the commander?
Before a successor in command can assume NJP jurisdiction, an assumption of command order (also known as G-series orders, AF Form 35) must be published.
88
When a commander is a victim of a crime in a personal capacity, to whom is the report of incident submitted?
The commander who is the victim of the crime should forward the report of the incident to the next higher
commander.
89
What officers may delegate their NJP powers to principal assistants?
A commander who is a general officer or a GCMCA may delegate his or her NJP powers to a principal assistant.
90
If a GCMCA commander withholds NJP authority from a base commander, what office keeps the original withholding document, and what office keeps a copy?
The original letter or directive is filed in the office of the SJA servicing the commander withholding the authority. A copy must be filed in the SJA’s office servicing the commander whose authority has been
withheld.
91
To ensure the timely administration of military justice, when should a commander offer NJP?
Commanders should offer NJP within 21 days of the date of discovery of the offense, or be able to explain why this was not appropriate.
92
How soon should the SJA review be completed after discovering the commission of an offense by a member?
Commanders must complete 80 percent of all NJP actions (date of discovery through servicing SJA review date) within 39 days.
93
Upon receipt of all evidence, what is the first thing you should do?
Review the evidence and compare it to the elements listed under the particular article of the UCMJ the member is accused of violating.
94
Where can you find sample language for NJP specifications?
Each punitive article of the UCMJ contains sample specifications for use in preparing charges and specifications.
95
Where do you look for model specifications on check cases?
Department of the Army (DA) Pamphlet 27–9, Military Judges’ Benchbook, or the samples provided in AFI 51–201, Administration of Military Justice.
96
What is the first stage of the NJP process?
The first stage in the NJP process is “the offer”
97
What date starts the running of the three duty-day period for the member to either accept NJP proceedings or demand trial by court-martial?
Service of “the offer” of NJP.
98
In NJP, what is the purpose of oral presentations?
They provide the member a chance to speak to the commander face to face.
99
What should the commander do when a member refuses NJP and elects trial by court-martial?
Immediately refers the matter to the servicing SJA.
100
Who can grant a member permission to withdraw a previous request for trial by court-martial?
The commander, with the concurrence of the convening authority.
101
What are two primary considerations in determining the kind or amount of punishment authorized under NJP?
The grade and status of the commander, and the grade of the accused.
102
When forfeiture of pay is imposed along with a reduction in grade (whether or not the reduction is suspended), on what pay grade is the forfeiture of pay based?
The forfeiture is based on the reduced grade.
103
In a case where the initiating commander is unable to impose punishment, what two options does a successor in command have?
(1) Withdraw the old AF Form 3070 and initiate a new action on a new AF Form 3070.
(2) Notify the member in writing of the change in commanders by using the notification format in AFI 51– 202, Attachment 3. When using the memorandum, verify a copy is attached to the AF Form 3070.
104
An unsuspended reduction in grade or forfeiture of pay takes effect upon what date?
The date the commander imposes punishment.
105
What is the rule when combining the punishments of restriction and extra duties?
Restriction and extra duties may run concurrently, but the combination may not exceed the maximum imposable for extra duties.
106
After a member has acknowledged his or her punishment, what must the member do within five calendars days from the receipt of that punishment?
The member must indicate his or her appeal decision within five calendar days by initialing only one area in block 6a–c, Member’s Appeal Decision, of the AF Form 3070.
107
If a member’s appeal is not granted in full by the imposing commander, what happens next in the NJP process?
If less than full relief is granted, the appeal must be sent to the appeal authority, through the SJA.
108
What is the effective date of relief when granted as a result of an appeal?
Unless otherwise stated, relief granted as a result of an appeal is effective from the date the punishment was initially imposed.
109
Under what circumstances must an enlisted member’s NJP action be filed in a UIF?
For enlisted members, a record of any suspended punishment under Article 15 or unsuspended Article 15 punishment with any portion of the punishment exceeding one month (31 days or more) must be filed in a UIF.
110
When must a decision to file a member’s NJP action in his or her promotion selection record be made?
When the member is an officer or enlisted member required to meet an evaluation board the commander imposing punishment decides whether or not to file the NJP in the member’s promotion selection record.
The filing decision is made after punishment is imposed and any appeal is resolved.
111
What is the next step in the NJP process after the legal office receives the completed NJP action from the commander?
The SJA or designee reviews the NJP action for legal sufficiency.
112
What document records MPS’s receipt of the NJP action?
An AF Form 1373.
113
After providing a copy of the NJP record to the MPS and AFO, and noting the dates of receipt, where is the original NJP sent?
To the SJA for the officer exercising GCMCA.
114
After the GCMCA SJA review, where is the original NJP record filed?
The GCMCA SJA sends the original record for filing in the master personnel record group at AFPC.
115
What office maintains the evidence supporting NJP action?
Evidence and other written materials are filed in the office of the SJA servicing the commander who initiated the NJP as attachments to the file copy of the action
116
What supplementary actions may be taken on NJP actions?
Set-aside, remission, mitigation, suspension.
117
Who may take supplementary action on NJP actions?
The commander or a successor in command.
118
Indicate the type of supplementary action that each of the following statements represents:
(a) Illegal punishments are done away with.
(b) Unexecuted legal punishments are done away with.
(c) Punishment is reduced in quantity or quality.
(d) A punishment is changed from executed to unexecuted and the member is placed on probation.
(e) The commander did not have authority to impose the punishment.
(f) Warranted for a first-time offender or when there are persuasive matters in extenuation or mitigation.
(g) The member shows dramatic improvement to the extent the commander feels no additional punishment should be served.
(a) set-aside;
(b) remission;
(c) mitigation;
(d) suspension;
(e) set-aside;
(f) suspension;
(g) remission.
119
Where are requests for suspension, mitigation, remission, or set aside of punishment, and any actions in response, filed?
All requests f are processed and filed with the original NJP record to ensure inclusion with other official file copies.
120
When may a previously suspended punishment under NJP be vacated? Who may take vacation action?
If the member violates any punitive article of the UCMJ or a condition of suspension specified in writing by the commander during the period of suspension, the commander who imposed the punishment or a successor in command may vacate the suspension.
121
In a vacation action, what rights does the member not have?
The member does not have the option of demanding trial by court-martial or the right to appeal the action to a superior commander once the punishment previously suspended is ordered executed.
122
What is the AF policy regarding vacation and new NJP action based on a single offense?
The commander may take vacation action and, if appropriate, offer new NJP, based on the same offense
123
When a commander wants to vacate a suspended punishment based on a new offense, when must the new offense have taken place?
The new offense occurred during the period of probation.
124
If a reduction in grade is suspended, but later vacated, what is the member’s new DOR?
It is reduced is the date the original reduction was imposed by the commander; however, the effective date
is the date of the vacation action.
125
What kind of offenses is withheld from initial disposition by the Secretary of Defense from a commander not in the grade of O–6 or higher and does not possess SPCMCA?
Rape or sexual assault in violation of Article 120, UCMJ; forcible sodomy, in violation of Article 125, UCMJ; and attempts to commit the offenses above, in violation of Article 80, UCMJ.
126
What are the mandatory items that the SPCMCA must consider when making a decision?
Matters transmitted from lower commanders,
court-martial charges (if any),
any independent review and recommendation received,
victim input, and/or consultation with the SJA.
127
What information may the SPCMCA consider when making their decision?
The SPCMCA may consider the disposition guidance contained in Appendix 2.1 of the Manual for Courts- Martial.
128
What office is required to draft the legal review, and who must acknowledge the disposition decision in writing?
The office of the SJA drafts the legal review for the SPCMCA and forwards it to the GCMCA for acknowledgement.
129
Why is it important to check that the personal data on the DD Form 458 is accurate?
Because it can affect the sentence.
130
What information is included in the Current Service block on the DD Form 458?
The beginning date of current enlistment and number of years of enlistment
131
Who can sign a charge sheet as an accuser?
person subject to the UCMJ
132
What must an accuser do before he or she can prefer charges on an accused?
He or she must sign the charges and specifications under oath before a commissioned officer of the armed forces authorized to administer oaths and have personal knowledge of or must have investigated the offense(s) alleged and that they are true in fact to the best of that person’s knowledge and belief.
133
In the preferral process, what happens after the accuser signs the DD Form 458 in block 11d?
The immediate commander will personally inform the accused of the charges by reading them to the accused and will sign in block 12 of the charge sheet.
134
After the accused is notified of the charges against him or her, what important step must take place and why is it so important?
The SCMCA must receive the sworn charges. It is important because it stops the running of the statute of limitations.
135
Once the SPCMCA receives the charges, what options does the SPCMCA have?
Dismiss the charges; forward the charges to a subordinate commander for disposition; forward any charges to a superior commander for disposition; refer charges to an SCM or SPCM; or direct a pretrial investigation under R.C.M. 405, and, if appropriate, forward the report to a superior commander for disposition.
136
If the SPCMCA desires to dispose of the case by a GCM, what must happen?
The SPCMCA forwards the preferred charges to a preliminary hearing under Article 32, UCMJ.
137
When may a convening authority refer a case to a court-martial?
When the convening authority finds or is advised by a judge advocate that there is probable cause to believe that an offense triable by a court-martial has been committed, that the accused committed it, and that the specification alleges an offense, then the convening authority may refer it.
138
What situation determines which level of legal office will prepare the referral of charges and convening order?
The type of court-martial the case is referred to.
139
What is the next step in the referral process after the convening authority determines what type of court is appropriate?
The convening authority will either personally sign Part V, Referral, Service of Charges, of the charge sheet or delegate the authority to sign to a judge advocate.
140
If two individuals are being tried jointly, what information must be included in the referral for trial?
“To be tried in a (joint/common) trial with (name).”
141
In general, what is the maximum number of members detailed to an SPCM?
12
142
What is the minimum number of members that are required to be detailed to the court for a GCM where the death penalty may be imposed?
Twelve.
143
If enlisted members are requested by the accused, what portion of the court members must be enlisted?
At least one-third.
144
What must take place if the accused is a foreign national USAF member?
The SPCMCA SJA must have the accused’s records examined to ascertain the accused’s nationality no later than 24 hours after referral, even if a claim of foreign nationality has not been made.
145
Once charges are referred to trial, what must occur? Who verifies it is accomplished?
The charges must be served on the accused. The trial counsel ensures it.
146
How are changes made to charges and/or specifications?
The changes are made on the original charge sheet by lining through the material while ensuring the form remains legible, and the person making the changes will initial and date by each change.
147
What is a major change to a charge and/or specification?
It is one that adds a party, an offense, or a substantial matter not fairly included in the preferred charge or specification, or that is likely to mislead the accused as to the offense charged.
148
What is the most significant difference between making minor and major changes to a charge and/or specification?
Major changes cannot be made over the objection of the accused unless the charge and/or specification are referred anew.
149
How are additional charges numbered on the DD Form 458?
When there are additional charges, prepare an additional DD Form 458. Number the additional charges in the same basic manner as initial charges. For example, designate a single additional charge simply as “ADDITIONAL CHARGE;” however, if there is more than one additional charge, designate them as ADDITIONAL CHARGE I, ADDITIONAL CHARGE II, and so forth.
150
What is the purpose of a convening order?
It designates the type of court, details the members of the court, and states the place it is to meet.
151
In what two ways may an SCM be convened?
It may be convened by a separate order that is prepared in accordance with R.C.M. 504(d)(2) or it may consist of a notation on the charge sheet signed by the convening authority.
152
What date is placed on a court-martial convening order?
The same date as designated in the referral portion of the charge sheet.
153
How are members identified in a convening order?
Rank, name, unit, MAJCOM, and base.
154
How are orders convening courts-martial numbered?
They are numbered consecutively on a fiscal year basis, starting with number 1, with the number following an A-series prefix.
155
How many amendments may be issued to the convening order before publishing a new order?
No more than two
156
What is the purpose of a savings clause?
Transfers all cases that have not yet been assembled to the new order by the court.
157
Who may be tried by an SCM?
Enlisted members subject to the UCMJ for any noncapital case offense made punishable by the UCMJ.
158
What punishment restrictions in an SCM apply to military members E–5 or above?
They may not receive confinement, hard labor without confinement or reduction, except to the next pay grade.
159
Before an SCM begins, what must the SCMO accomplish?
The SCMO shall examine the charge sheet, allied papers (convening orders, investigative reports, correspondence relating to the case, and witness statements), and the accused’s personnel records to verify they are complete and free from errors or omissions which might affect admissibility.
160
On what form is the SCM ROT prepared?
DD Form 2329, Record of Trial by Summary Court-Martial.
161
What is the composition of a SPCM?
A military judge and four members with or without alternates or a military judge alone if requested by the
accused and approved by the military judge.
162
What is the composition of a GCM?
GCMs are composed of a MJ and 8 mbrs w or w/o alternates, or a MJA if requested by the acc and approved by the MJ.
In non-capital GCM cases, the quorum may fall to 6 members after impanelment without having to return to the convening authority to detail new members to the court.
In all capital cases, GCMs shall consist of a military judge and not less than 12 members with or without alternates.
163
State the purpose of an Article 32, UCMJ preliminary hearing.
The primary purpose of an Article 32, UCMJ preliminary hearing is to determine:
Whether the specification alleges an offense under the UCMJ.
Whether there is probable cause to believe that the accused committed the offense charged.
Whether the convening authority has court-martial jurisdiction over the accused and the offense.
A recommendation as to the disposition that should be made of the case.
164
What are the general qualifications of an officer who can be appointed as an Article 32, UCMJ PHO?
The PHO should be senior in rank to the accused, must be a designated judge advocate, and should be certified under article 27(b), UCMJ.
165
What is one of the first things you should do when you know who the PHO will be?
Ensure the PHO has a copy of the AFLOA/JAJM Article 32 Preliminary Hearing Officer’s Guide and script for review.
166
What is the primary difference between a court-martial and an Article 32, UCMJ preliminary hearing?
An Article 32, UCMJ preliminary hearing is concerned only with finding facts. A court-martial determines guilt or innocence and imposes punishment.
167
What must the PHO do before the Article 32, UCMJ preliminary hearing?
Review the charge sheet and the evidence that forms the basis for the charge(s), and any other documents attached to the PHO appointment letter.
168
What form does the PHO use to make his or her report after the investigation? How is it used?
The DD Form 457 with supplemental pages, if necessary, to record findings and recommendations.
169
What is the next step in the process after the PHO forwards the report to the SJA of the convening authority who directed the Article 32, UCMJ preliminary hearing?
The SJA makes photocopies of the report and delivers it to the convening authority and, if delegated, will promptly cause a copy of the report to be served on both the accused and accused’s counsel.
170
What options are available to the SPCMCA after an Article 32, UCMJ preliminary hearing is conducted?
The convening authority may decide to dispose of it within his or her jurisdictional limits or recommend to the officer exercising GCM jurisdiction (GCMCA) a GCM tries the case.
171
When is a formal written pretrial advice of the SJA required?
In any case that may be referred to a GCM.
172
What information must be included in the SJA’s pretrial advice?
Conclusion concerning whether each specification alleges an offense under the UCMJ; Conclusion concerning whether there is probable cause to believe that the accused committed the offense charged in the specification; conclusion concerning whether a court-martial would have jurisdiction over the accused and
the offense; and recommendation as to the disposition that should be made of the charges and specifications by the convening authority in the interest of justice and discipline.
173
What is the next step after pretrial advice is finalized?
A referral package is prepared.
174
What does a referral package include?
It includes the charge sheet,
commander’s indorsement,
forwarding letters or other indorsements, and,
if applicable, the investigating officer’s appointment letter with attachments, any other evidence the SJA deems pertinent.
In cases where the Article 32, UCMJ was waived by the accused, forward the accused’s waiver along with any evidence the SJA relied upon to conclude the charges and specifications are warranted.
175
What are some of your duties when Article 32, UCMJ preliminary hearings are conducted?
assisting the convening authority in obtaining personnel to participate in the preliminary hearing
assisting the PHO in preparing the report. This may include acting as a reporter for an Article 32, UCMJ preliminary hearing and
providing the PHO with a DD Form 457.
176
What chapter in AFI 36–3208 provides guidance on an enlisted member’s request for discharge in lieu of court-martial?
Chapter 4.
177
In most cases, what is the service characterization for an enlisted Airman administratively discharged in lieu of court-martial?
UOTHC
178
To whom does an enlisted accused submit his or her request for discharge in lieu of courtmartial?
Unit Commander
179
What happens to a request for discharge in lieu of court-martial after the unit commander makes his or her recommendations?
The commander sends the case file, along with the recommendation letter to the MPS.
180
Who is the final approval authority on a discharge request in lieu of trial by court-martial?
The GCMCA, except in cases where the charges were referred to an SCM, and GCMCA wishes to seek SAF approval for a UOTHC.
181
If an officer requests to resign for the good of the service (RILO) and charges have not been referred, who may deny the resignation?
SPCMCAs, GCMCAs, and MAJCOM commanders.
182
How does the RILO process begin?
The wing commander or equivalent authority indorses the resignation to the GCMCA.
183
What level legal office is required to do a comprehensive legal review on all RILO requests?
The base level, or equivalent, legal office where the RILO originated.
184
What is the GCMCA required to do after he or she receives a RILO withdrawal request?
Indorse the request and forward it to the officer’s MAJCOM of assignment.
185
When a RILO is pending, what is required before a case can proceed to trial?
Prior authorization from AFLOA/JAJM.
186
Which regulation outlines specific rules for discovery that must be followed for all courtsmartial?
AFI 51-110.
187
What does mandatory disclosure mean?
The information must be turned over automatically by both sides; no request is required.
188
Who resolves the issue when there is a disagreement of whether or not information or evidence is
discoverable?
The military judge.
189
Who serves as the focal point for all courts-martial docketing and detailing decisions?
CDO
190
What action must the legal office tasked with prosecuting the case take after referral and service of charges on the accused?
Immediately notify the CDO of the referred charges and detailed counsel by email.
191
Who is responsible for holding a docketing conference with counsel? When should it be held?
The Clerk of Trial Courts or the docketing judge. The docketing conference should be held within two duty days following the day of notice of referral
192
What is the purpose of a pretrial scheduling conference?
To promote a fair and expeditious trial and discuss issues that are outstanding or foreseeable and capable of early resolution, such as approval of experts, discovery, evidentiary motions, requests for sanity boards, and so forth.
193
When is a request for trial by the military judge alone approved?
During the Article 39(a) proceeding and only after the military judge has made certain inquiries of the accused and is convinced the accused understands the meaning and effect of trial by military judge alone.
194
What information should you notify members who have been detailed to a court-martial, them?
The date, time, place, and the uniform required for courts-martial.
195
If there is a disagreement between the trial counsel and defense counsel as to whether the testimony of a witness is relevant, to whom is the matter referred for a decision?
The detailed military judge.
196
What are the primary reasons the status of a witness is determined?
To determine proper notification procedures ensuring his or her presence at trial and to determine who will be responsible for funding his or her travel.
197
Who has the power to compel a witness to appear and testify before a court-martial?
The trial counsel.
198
When is formal service of a subpoena required?
When the witness is unwilling to testify.
199
After you determine the status of a witness, what is the next step in funding witness travel and
fees?
Determine who will provide the funding.
200
What is the first step in requesting witness funding from AFLOA/JAJM?
Complete a request via the WFMS at least ten days before the proceed date entered in WFMS.
201
When not funded by AFLOA/JAJM, who funds witnesses for a GCM?
The GCMCA.
202
Who funds forensic experts for urinalysis cases?
The AFLOA/JAJM.
203
How much is CWF authorized to pay civilian expert witnesses per day and per case?
$1,000 per day with a maximum of $4,000 per case.
204
What is the maximum number of days witnesses have to complete their travel vouchers through
DTS?
Within five calendar days of returning from TDY.
205
What documentation is used to process expert fee vouchers?
The SF 1034, Public Voucher for Purchases and Services Other Than Personal.
206
What is a deposition?
An out-of-court testimony of a witness under oath in response to questions by the parties, which is transcribed or recorded on videotape, audiotape, or similar material.
207
Why are depositions used?
To preserve the testimony of a witness who is likely to be unavailable at the investigation under Article 32 or at the time of trial
208
What is considered good cause for denial of a deposition request?
Failure to state a proper ground for taking a deposition, failure to show the probable relevance of the witness’ testimony, or that the witness’ testimony would be unnecessary.
209
Who has the discretion to decide whether depositions recorded by videotape, audiotape, or sound film may be played for the court-martial or may be transcribed and read to the court-martial?
Military judge.
210
Why do we request immunity?
We request immunity when we need a witness to testify without fear that his or her testimony may be used against him or her.
211
What are the two types of immunity?
Transactional immunity and testimonial immunity.
212
Who has the authority to grant immunity to a witness?
A GCMCA; it may be delegated and may be limited by a superior authority.
213
To whom may a GCMCA grant immunity?
Any person subject to the code, unless specifically authorized to do so by the Attorney General of the United States or other authority designated under 18 U.S.C. 6004. A GCMCA may grant immunity to persons not subject to the code only when specifically authorized to do so by the Attorney General of the United States or other authority designated under 18 U.S.C. § 6004.
214
What does the term stipulation mean?
An agreement between two or more parties.
215
Why are stipulations of fact important?
They can reduce the time and expense of a court-martial.
216
What type of stipulation may be attacked, contradicted, or explained?
Stipulations of expected testimony.
217
Why do we write motions?
Because we want the court to rule in our favor on a particular issue.
218
Why are motions important?
They can influence the kind of evidence either party can present at trial.
219
Who is allowed to make pretrial motions or raise motions during the trial?
Either party; the prosecution and/or the defense.
220
Define a plea agreement.
An agreement between the accused and the convening authority to fulfill terms or conditions agreed upon prior to trial.
221
Who may initiate a plea agreement?
The trial counsel, SJA, convening authority, and duly authorized representatives, or defense counsel and accused.
222
Who is authorized to enter into or reject offers to enter into plea agreements with the accused?
GCMCAs and SPCMCAs, unless a superior commander withholds such authority
223
When is the military judge notified of plea agreements?
Before arraignment.
224
How is withdrawal of a plea agreement by the accused submitted?
In writing and given to the SJA or trial counsel.
225
What is the first step in preparing the courtroom?
To ensure the courtroom has a neat, clean, and orderly appearance.
226
What should be provided to the trial participants before the court convenes?
Appropriate supplies (e.g., paper and pencils), a copy of the convening order, and any amendments.
227
When does trial counsel provide the flyers to the members of the court?
During the open session of the court when members are present.
228
What is probably the most important aspect of preparing the courtroom?
Setting up the court-reporting equipment.
229
What must you remember in preparing trial folders?
Trial counsel and defense counsel must have the same exact documentation within their respective folders.
230
What are the bailiff’s duties before trial?
Reports to the base legal office prior to the day of trial to receive a bailiff’s guide, a briefing, and walkthrough of the office; reports to the trial counsel in proper uniform at least 30 minutes before commencement of each day’s procedures; ensures courtroom and jury deliberation room have a neat, clean, and orderly appearance, and furniture is in proper arrangement.
231
What responsibility does the bailiff have regarding spectators?
See that they can enter the courtroom, be seated, and leave quietly.
232
If the bailiff is instructed to deliver an item to a court member in closed session, what must the bailiff do first?
Must inform the military judge and obtain approval.
233
What miscellaneous duties may the bailiff have during the trial?
Summon the court members, counsel, and all required parties to the courtroom when needed; summon witnesses when requested; deliver items to the court (e.g., evidence, findings, and sentence worksheets); deliver items of evidence to any deliberation room if instructed by the military judge; and perform administrative errands as requested.
234
What takes place during the Article 39(a) session of a court-martial?
The military judge hears and determines motions; hears and rules on matters authorized under the UCMJ; conducts arraignment, and the entering of pleas.
235
What is the purpose of voir dire?
Court members are examined to determine whether they can try the case fairly and impartially
236
What is the customary procedure concerning arraignment when a military judge presides over a trial?
To hold the arraignment at an Article 39(a) session out of the presence of the court members.
237
What is the purpose of a Care inquiry?
To ensure the accused understands what he or she is pleading guilty to, and that he or she is, in fact, guilty of each element of each charge and specification
238
What is the usual sequence followed during the presentation of evidence?
Presentation of evidence for the prosecution; presentation of evidence for the defense; presentation of prosecution evidence in rebuttal; presentation of defense evidence in surrebuttal; additional rebuttal evidence at the discretion of the military judge; presentation of evidence requested by the military judge or members.
239
When is it appropriate to motion for a finding of not guilty?
After presentation of the evidence on findings, but before the sentencing portion of a court-martial.
240
What must the defense specify when making a motion for a finding of “not guilty”?
How the evidence is insufficient.
241
What standard of proof is applied for guilty findings?
Proof beyond a reasonable doubt based on direct or circumstantial evidence.
242
How do court members vote?
By secret written ballot for each charge and specification
243
What is the purpose of the sentencing phase of the court-martial?
To determine the type of punishment the accused will receive after a finding of guilty.
244
What categories of evidence may the trial counsel submit during sentencing?
The PDS; character of the accused’s prior service; prior convictions from a military court-martial or civilian court; evidence of aggravation; and evidence of rehabilitative potential.
245
What should the military judge do if he or she deviates significantly from the standard sentencing instruction?
State on the record the reason(s) for the deviation.
246
Why may a trial counsel not claim to speak for the convening authority?
To prevent any hint of command influence.
247
What should a defense counsel not do when giving the sentencing argument?
Not concede the accused guilt if the accused pled not guilty during arraignment.
248
What is one of your paralegal duties when the sentence is announced in court?
Write down the sentence exactly as it is announced in court.
249
From what point in the post-sentencing procedure does the accused have to submit matters for consideration by the convening authority?
The clock for submission of matters starts immediately following the announcement of sentence.
250
Matters submitted by the crime victim are served on the accused. How long does the accused have to submit a rebuttal for consideration of the convening authority?
Five calendar days.
251
What is the purpose of the statement of trial results?
To promptly notify specific individuals of the pleas, findings, sentence, forum, plea agreement, suspension recommendation and other information directed by the military judge.
252
How are the specifications in the statement of trial results written?
The specifications on the STR are written in a similar manner to those on the DD Form 458, Charge Sheet, but the specifications on this memorandum may be summarized.
253
List the contents of the statement of trial results.
Findings, sentence, forum, plea agreements, suspension recommendations, other information the military judge deems necessary
254
Who may rescind a deferment of confinement?
The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under that individual’s jurisdiction, by the officer exercising GCM jurisdiction over the command to which the accused is currently assigned.
255
When can automatic forfeitures under Article 58b, UCMJ be waived?
Only in cases where the accused has dependents.
256
What is the purpose of action by the convening authority?
To approve or disapprove all or part of the findings or sentence, or both.
257
What punishments can the convening authority approve in the action by the convening authority?
It can approve all punishments that will be established in an Entry of Judgment but it cannot order a punitive discharge or the death penalty executed until the case has gone through all levels of appellate review.
258
What is the purpose of the EOJ?
It reflects the result of the court-martial, as modified by any post-trial actions, rulings, or orders.
259
What items are included in the ROT?
(1) The judgment entered into the record by the EOJ.
(2) The STR.
(3) Any action by the convening authority under R.C.M. 1109 or 1110.
(4) A substantially verbatim recording of the court-martial proceedings except sessions closed for deliberations and voting.
(5) The original charge sheet or a duplicate.
(6) A copy of the convening order and any amending order.
(7) The request, if any, for trial by military judge alone; the accused’s election, if any, of members under R.C.M. 903; and, when applicable, any statement by the convening authority required under R.C.M.
503(a)(2).
(8) The election, if any, for sentencing by members in lieu of sentencing by military judge under R.C.M. 1002(b).
(9) Exhibits.
(10) Prosecution exhibits admitted during trial.
260
What items are attached to the ROT?
(1) PHO report.*
(2) Pretrial advice.*
(3) Record of former hearings (retrials).*
(4) Exhibits not in evidence.
(5) RCM 1106/1106A matters.
(6) Deferment requests and action.
(7) Waiver/withdrawal of appellate review.
(8) Transcript.
(9) Other items as required by AFMAN 51–203.
261
Explain the process for certifying the ROT after the record has been transcribed.
The court reporter notes any transcription errors then forwards it to trial counsel and signs a certification verifying the examination, the record is then sent to the defense counsel, and finally to the military judge.
262
What is the purpose of the Article 64 review?
To determine if the findings and sentence are correct in law and fact.
263
What cases require an Article 64 review?
SCMs with a finding of guilty.
264
Under an Article 69 review, when must the accused submit matters for TJAG’s consideration and
to whom are they submitted?
Matters must be submitted directly to AFLOA/JAJM on or before the 30th day after the date the GCMCA approved the sentence, unless the accused establishes good cause for not filing matters within that time.
265
Within what period of time may an accused petition the CAAF?
60 days from the time he or she is personally notified of the AFCCA decision or the date a copy of the decision, after being served on appellate defense counsel, was deposited in the US mail for delivery by first-class certified mail, whichever is earlier.
266
When must the CAAF review ROTs?
In all cases in which the sentence, as affirmed by the AFCCA, extends to death;
cases reviewed by the AFCCA that TJAG orders sent to the CAAF for review;
and cases reviewed by the AFCCA in which, upon petition of the accused and on good cause shown, the CAAF has granted review
267
When are decisions of the CAAF reviewed by the Supreme Court by writ of certiorari?
In cases reviewed by CAAF in which the sentence extends to death;
cases reviewed by AFCCA, which TJAG certifies to the CAAF;
all cases where the CAAF granted a petition for review for good cause;
and cases in which the CAAF granted relief.
268
When may the Supreme Court not review by writ of certiorari?
Any action of the CAAF in refusing to grant a petition for review.
269
When may a trial counsel appeal an order or ruling by the military judge?
With the approval of TJAG, the government may appeal a sentence to the AFCCA on the grounds that the sentence violates the law or is plainly unreasonable.
270
What is the procedure for a rehearing on sentence only?
The same as in an original trial, except the portion of the procedure that ordinarily occurs after challenges and through and including findings is omitted.
271
What triggers the speedy trial clock for a rehearing?
Receipt of decision by the original convening authority’s SJA.
272
What is the disposition of a DD Form 458 for a rehearing?
The new referral is attached to the original referral.
273
What kind of hearing is ordered when an appeal cannot be resolved without factual clarification?
A DuBay hearing.
274
Who may direct a DuBay hearing?
The CAAF, AFCCA, convening and supervisory authorities, or a detailed military judge.
275
Why are in-camera proceedings normally held?
To determine the extent of disclosure of classified information.
276
What is the disposition of the record of the in-camera proceeding?
It is sealed and attached to the ROT as an appellate exhibit.
277
Regarding military justice inquiries from HHQ, NAF, MAJCOM, JAJM, etc, what information must all inquiry responses include?
A detailed response to specific inquiries; narrative of the activity, including dates, resulting in the action in question; and any other unique or significant aspects.
278
What governs the disclosure of ROTs to the public?
PA and FOIA.
279
Who is the disclosure authority for ROTs?
The SJA for the convening authority responsible for the criminal proceeding, unless this authority has been withheld by AFLOA/JAJM or other higher authority.
280
Prior to arraignment at trial, a reservist being tried by a general or special court-martial must be
on active duty.
281
What describes a victim who is entitled to transitional compensation?
Dependent of active duty military that was on active duty for more than 30 days, and after 29 November 1993 was separated from active duty under a court-martial sentence resulting from a dependent-abuse offense.
282
An annual report of victim and witness assistance should arrive at Air Force Legal Operations, Military Justice Division no later than
15 February.
283
Your first step when drafting a memorandum to place a member on administrative hold is to determine
which assignment availability code (AAC) to use.
284
What identifies a member that has been placed in arrest?
Member has been restricted to a specific area by a written or oral order.
285
Rules for Courts-Martial (R.C.M.) 707(a) requires an accused be brought to trial within 120 days after
preferral of charges
286
What must be proven first if a search authorization is to be issued?
Probable cause.
287
When evidence is seized, how is it marked?
Time and date seized and the initials of the person seizing it.
288
At a minimum, when must an inventory of all evidence be conducted?
Quarterly and when changing custodians.
289
When interviewing a victim of the opposite sex, ensure you
Have another person of the same sex as the victim present.
290
Some witnesses are reluctant to disclose information. Which reason describes when people feel getting involved in an incident may require a great deal of time and they do not want to get involved?
Inconvenience.
291
What interview preparation step includes outlining topics to be covered and in what order?
Information sought.
292
What should you do first when conducting a witness interview?
Identify yourself and any additional personnel witnessing the interview.
293
If your evidence does not meet all the elements of a punitive article, or is not received legally, then it
will not be allowed to be used.
294
What must be done for a court-martial before selecting the punitive articles of the Uniform Code of Military Justice (UCMJ) that a member is suspected of committing?
Read through all the evidence.
295
The easiest way to search for the punitive article(s) that may have been violated is to search the Manual for Courts-Martial (MCM)
Appendix 2, Subchapter X.
296
What is the final step taken by the paralegal when preparing the proof analysis?
Consider and list any potential evidentiary problems.
297
Who is ultimately responsible for case evidence strategy?
Trial counsel.
298
Before evidence is released during the investigation phase, what information generally does not have to be redacted?
Names of witnesses.
299
if state or nonmilitary federal authorities have prosecuted an offender, for the AF to prosecute the offender under the UCMJ who is the approval authority.
Secretary of the Air Force (SAF)
300
What offenses in the UCMJ do NOT have a statute of limitations?
As of 2019, these offenses are absent without leave or missing movement in time of war, murder, rape or sexual assault, or rape or sexual assault of a child, or any other offense punishable by death.
301
According to Article 43, UCMJ what is the normal statute of limitations for offenses?
no more than 5 years after the commission of the offense
302
When can a reservist be retained on AD to serve a punishment consisting of confinement or restriction on liberty (restriction, extra duties, correctional custody, or arrest in quarters).
When ordered to AD with the concurrence of SAF
303
Define concurrent jurisdiction
when a state has ceded land to the US, but has reserved to itself the right to exercise its state authority. In these jurisdictions, both the state and federal governments may prosecute those who violate their laws.
304
Define exclusive jurisdiction
the AF possesses all of the legislative authority (jurisdiction) of the state over the installation, and the state has not reserved the right to exercise any of that authority concurrently with the AF.
305
Define proprietary jurisdiction
AF is a tenant, limited authority
jurisdiction exercised by any owner of the property—the right to grant or deny entrance to the property, and so forth.
The federal government maintains supremacy and immunity for inherently governmental functions on the property. The only federal laws that apply are those that do not rely upon federal jurisdiction over the area and include specific statutory federal crimes (i.e., bank robbery, espionage, sabotage, and counterfeiting).
306
Define Reciprocal jurisdiction
Each armed force has jurisdiction over all persons subject to UCMJ
A commander of a unified or specified combatant command may convene a court
martial over members of any armed forces.
However, the convening authority must be in command of a unified or specified command, or a commander of a subordinate joint command or subordinate joint task force, who has been authorized by the commander of the unified or specified command to convene such a court.
307
Define Foreign Criminal jurisdiction
AF members serving or deployed at overseas locations are subject to criminal proceedings by both the host nation (HN) and by the US for offenses they have allegedly committed.
308
What are a victims Article 6b, UCMJ rights?
The right to be reasonably protected from the accused.
The right to reasonable, accurate, and timely notice of any of the following:
o A public hearing concerning the continuation of confinement prior to trial of the accused.
o A preliminary hearing under section 832 of this title (article 32) relating to the offense.
o A court-martial relating to the offense.
o A public proceeding of the service clemency and parole board relating to the offense.
o The release or escape of the accused, unless such notice may endanger the safety of any person.
The right not to be excluded from any public hearing or proceeding [described above] unless
the military judge or preliminary hearing officer, as applicable, after receiving clear and
convincing evidence, determines that testimony by the victim of an offense under this chapter
would be materially altered if the victim heard other testimony at that hearing or proceeding.
The right to be reasonably heard at any of the following:
o A public hearing concerning the continuation of confinement prior to trial of the
accused.
o A sentencing hearing relating to the offense.
o A public proceeding of the service clemency and parole board relating to the offense.
The reasonable right to confer with the counsel representing the government at any proceeding described in paragraph (2).
The right to receive restitution as provided in law.
The right to proceedings free from unreasonable delay. The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.
309
What is the purpose of the Vic and Wit Protection Act of 1982?
enhance and protect the crime victims and witnesses in the criminal justice system.
310
The 1984 VOCA created the Crime Victim's Fund, under certain limited circumstances, it permits the compensation of crime victims from money obtained from what?
criminal fines,
penalties,
court costs, or
other assessments against convicted federal criminals
311
What expenses are paid through the Crime Vic's Fund?
Medical expenses, mental health counseling, lost wages, funeral expenses, and lost support.
Property loss (damaged or stolen property is usually not covered).
The amount of available medical or auto insurance limits compensation.
312
Where are duties of a Victim Liason outlined?
51-201
313
When is the DD Form 2702, Court- Martial Information for Victims and Witnesses of Crime given to a vic/wit?
This pamphlet is given to the victim/witness prior to trial.
It explains the military trial process, covering preferral of charges, pretrial conferences, Article 32, UCMJ hearings, court-martial, testimony, pointers when testifying, closing arguments, sentencing, punishment, and their participation. It also lists the names and contact numbers for the LRO and the trial counsel
314
When is the DD Form 2703, Post-Trial Information for Victims and Witnesses of Crime given to a Vic/Wit?
This pamphlet is given to the victim/witness at the conclusion of the trial; however, it may be given prior to the end of the trial.
It explains the confinement process, convening authority action, clemency and parole considerations, victim/witness notification rights, how to exercise their rights, their points of contact for the confinement facility, and a list of their rights as a victim/witness. It lists points of contact for the service central repository, confinement facility, service clemency and parole board, and any other additional points of contact.
315
When is the DD Form 2705, Notification to Victim/Witness of Prisoner Status USED?
This form is used when the victim/witness has requested notification of changes in status on the DD Form 2704.
316
Transitional compensation can be provided to individuals who are dependents of mbrs of the armed forces who have been on active duty for more than 30 days and who, after WHAT DATE, are separated for a dependent-abuse offense?
29 November 1993 (Authority 10 USC 1059)
317
When does transitional compensation begin for a dependent or spouse in court-martial cases?
after the entry of judgement (in accordance with 10 U.S.C. 1059) and approves the court-martial sentence for a dependent-abuse case offense that includes a dismissal, dishonorable discharge (DD), bad conduct discharge (BCD), or forfeiture of all pay and allowances.
318
When does transitional compensation begin for a dependent or spouse in discharge cases?
the compensation begins when the commander starts administrative separation action.
The duration of payments is the lesser of 36 months except if as of the starting date of payment, the unserved portion of the member’s obligated active duty service is less than 36 months. In this case, the duration of payment is the duration of the unserved portion or 12 months, whichever is greater.
319
What is assignment availability code 14?
Member is identified by the SJA as a material witness for courts-martial, trial in a foreign country or certain non-criminal trials in the US, state, or federal courts.
320
Define the suspension supplementary action for an NJP
Suspension is the postponement of the application of all or part of the executed or unexecuted punishment for a specific probationary period, until a specified date.
321
Define the Mitigation supplementary action for NJP
Mitigation is a reduction in either the quantity or the quality of a punishment with its general nature remaining the same.
322
With the exception of reduction in grade, only the unexecuted part or amount of the punishment can be mitigated. The commander could mitigate:
Reduction in grade to forfeiture.
Unexecuted forfeiture of pay to a lesser forfeiture of pay.
Correctional custody to extra duties, restriction, or both.
Arrest in quarters to restriction.
Extra duties to restriction.
The mitigated punishment may not be for a period greater than the remaining for original punishment
323
Define the Remission supplementary action for an NJP
Remission means doing away with “unexecuted” punishment
324
Define the Setaside supplementary action for an NJP
Set aside occurs when the punishment, or any part or amount thereof, whether executed or unexecuted, is removed from the record and any rights, privileges, pay, or property affected by the relevant portion of the punishment is restored.
A set aside of all punishment voids the entire NJP action.
A commander may not set aside punishment more than four months after execution of the punishment, unless the commander determines unusual circumstances exist and explains them in an attachment to the AF Form 3212 (fig. 2–3).
325
What form is used to perform a supplementary action?
AF FOrm 3212
326
What form is used for a vacation action?
AF Form 366
327
the statutory waiting period requires that no charges may be brought to trial before an SPCM within HOW MANY days after charges are served on the accused or to trial before a GCM within HOW MANY days after the charges are served on the accused?
SPCM = 3 days
GCM = 5 days
328
What information and evidence must be disclosed without any prior request from the
prosecution in accordance with R.C.M. 701?
The names of witnesses and statements;
Notice of certain defenses:
o The intent to offer the defense of alibi;
o The intent to offer the defense of innocent ingestion;
o The intent to offer the defense of lack of mental responsibility;
The intent to introduce expert testimony as to the accused’s mental condition.
Inadmissibility of withdrawn evidence.
329
What information and evidence must be disclosed without any prior request from the defense in accordance with R.C.M. 701?
Papers accompanying charges, convening orders, and statements.
The names of witnesses.es of witnesses.
Any prior convictions of the accused.
Evidence favorable to the defense that reasonably tends to:
o Negate the guilt of the accused of an offense charged.
o Reduce the degree of guilt of the accused of an offense charged.
o Reduce the punishment.
o Adversely affect the credibility of any prosecution witness or evidence.
330
What does mandatory disclosure mean?
Mandatory disclosure means both sides must turn over the information automatically; no request is required.
331
What UCMJ article provides that both the prosecution and defense will have equal opp. to talk to witnesses and examine evidence?
Art 46
332
What R.C.M. discusses immunity?
704
333
What is transactional immunity?
bars any subsequent court-martial action against the immunized person concerning the immunized transaction, regardless of the source of the evidence against that person
334
What is testimonial immunity?
or “use” immunity bars the testimony, statements, and information directly or indirectly related to the testimony and statements to be used against that person later in a court-martial.
This immunity is preferred because it does not prevent the Air Force from trying the person on a criminal offense. It only prevents the government’s use of information obtained (directly or indirectly) from the immunized person against him or her.
335
What is the process of Pretrial CONFINEMENT?
Imposition of PTC -> Notify CC w/in 24 hrs -> 48 hr probable cause determination -> 72 hr memo -> PCRO 7 day review -> Notify CC/ACC
336
Probable cause to order pretrial restraint exists when there is a reasonable belief that what?
An offense triable by court-martial has been committed.
The person to be restrained committed it.
The restraint ordered is required by the circumstances.
337
Can the authority to order PRETRIAL RESTRAINT of civilians and commissioned and warrant officers be delegated?
NO
338
Can the authority to order enlisted members of his or her command or subject to his or her authority be delegated?
Yes, to warrant, petty and noncomissioned officers.
339
Pretrial RESTRAINT is defined by which RCM from the MCM and is defined as what?
304 - moral or physical restraint on a person’s liberty that is imposed before and during the disposition of offenses.
340
Who may release a person from pretrial RESTRAINT?
A person who is also authorized to impose it.
341
PTC is the most severe of all the restraints because it is what?
the actual physical restraint of a person
342
If a prisoner requests military counsel during Pretrial CONFINEMENT when must one be provided?
before the 48-hour probable cause determination or within 72 hours of such a request being first communicated to military authorities, whichever occurs first.
343
How is PTC initiated?
Preparing a DD Form 2707
344
Is DNA processing required with all cases of PTC?
YES
345
When does the PTC review process start?
Based on the dates and times on the 2707
346
Who must be the person conducting the legal review for the PTC?
Someone other than the person directing confinement.
347
Who ensures the confinee receives a medical examination within 1 duty day of entering confinement
Security Forces
348
Who informs the members commander of the PTC if the mbrs commander did not order the PTC?
Confinement Facility
349
Within 48 hours of the imposition of confinement under military control, who must review the adequacy of probable cause to continue PTC?
a neutral and detached officer
350
PTC can continue only if the CC believes probable cause exists that what?
an offense triable by a court-martial has been committed;
the prisoner committed it; and
confinement is necessary because it is foreseeable that:
o the prisoner will not appear at trial, pretrial hearing, or investigation, or
o the prisoner will engage in serious criminal misconduct; and
less severe forms of restraint are inadequate.
351
The member’s commander shall decide whether to continue PTC no later than how many hours after a military member is ordered into PTC or after receipt of a report that a member has been confined.
72 hours - If the CC continues PTC they must prepare a written memo stating reasons for the conclusion that the requirements of probable cause have been met.
352
If after 72 hours, the CC continues PTC and writes the mandatory memo, who is it sent to?
The Pretrial Confinement Review Officer (PCRO).
353
When does the 72 hours CC decision memo satisfy the 48 hr probable cause determination?
The 72-hour commander’s decision memorandum will satisfy the 48-hour probable cause determination requirement ONLY if the commander is neutral and detached and acts within 48 hours of the imposition of confinement (R.C.M. 305[h][2][A])
354
Within how long of the imposition of PTC under military control must a PCRO review the probable cause determination and make a decision about the necessity for continued PTC?
7 days. Must be a neutral and detached officer and appointed in writing by the SPCMCA.
355
Who CANNOT be a PCRO?
Chaplains, SJA office personnel, AFOSI and security forces members, and court-martial convening authorities
356
Following the PCRO's review of the CC's decision to continue PTC (72 hr memo) what happens?
A hearing is then held at which the pretrial confinee and defense counsel shall be allowed to appear and make a statement before the PCRO. The PCRO must complete a written summary of the testimony of any witnesses.
Upon completion of the review, the PCRO will determine whether to continue PTC or order
immediate release. Within 24 hours of making the PTC decision, the PCRO must complete a memorandum outlining the findings and conclusion on which the decision was based.
357
Once the charges are referred to trial, who may review the propriety of PTC upon a motion for appropriate relief?
The military judge shall order release from PTC only if the seven-day reviewing officer’s decision was an abuse of discretion and there is not sufficient information presented to the military judge to justify the continuation of PTC, information not presented to the seven-day reviewing officer establishes the prisoner should be released, or the 48-hour or seven-day review has not been complied with and information presented to the military judge does not establish sufficient grounds for continued confinement.
358
Which RCM requires the accused be brought to trial within 120 days after the earlier of preferral of charges, the imposition of restraint (restriction, arrest, or confinement, but not conditions on liberty), or entry on active duty under R.C.M. 204 (jurisdiction over certain reserve personnel)?
707(a)
359
Define Apprehension
Apprehension is the act of taking a person into custody. It is the equivalent of “arrest” in civilian terminology.
360
What are the ways a preliminary inquiry happens?
through security forces office of investigations, the AFOSI, or a commander may direct a formal or informal investigation; the type of investigation is dependent on the nature of offenses.
361
What are the exceptions to probable cause outline in MRE 314?
Government property, lawful consent, searches incident to a lawful stop.
362
What MRE outlines that probable cause to seize property or evidence exists when there is a reasonable belief the property or evidence is an unlawful weapon, contraband, evidence of a crime, or might be used to resist apprehension or to escape.
MRE 316
363
Who may grant search authorizations?
military judges, military magistrates (not currently used in the AF), and qualified commanders have the authority to grant search authorizations
364
What is a chronology?
A chronology is the arrangement of events in the order of occurrence and is one of the most useful documents an investigator can create to assist him/her and those reviewing the report.
365
What is real evidence?
Physical evidence that itself plays a direct part in the incident in question.
366
What is testimonial evidence?
A person’s testimony offered to prove the truth of the matter asserted
367
What is Documentary evidence?
Evidence supplied by a writing or other document must be authenticated before the evidence is admissible. This includes private writings, records of regularly conducted business activity, and public records. Documentary evidence is often the most frequently utilized form of evidence at courts-martial.
368
What is demonstrative evidence?
Physical evidence is evidence that one can see and inspect.
369
When marking an item would reduce the evidentiary or financial value of the item how is it marked?
place those items in sealed bags or containers, and mark the bag or container with the appropriate information as
370
How are all photographs at the scene of a crime documented?
All photographs are documented in a photograph log with camera positions indicated on a sketch
371
What Article covers the rights of a person subject to the UCMJ prior to interrogation?
Article 31
372
What is the purpose of an interview?
gain information to establish the facts of an incident or crime and to develop background information on specific incidents, crimes, or offenses
373
A civilian does not have to speak during an interview until the prosecution does what?
Issues a subpoena to compel the individual to testify after the case has been referred to courts-martial
374
What is the test for legal sufficiency?
The test for legal sufficiency of the evidence is whether, when considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.
U.S. v. Turner, 25 MJ 324
375
Where can the MRE be found in the MCM?
Part III
376
Are Article 15 specifications drafted in first or second person?
Second
Ex: You, did, on or about .....
377
Are Court-martial specifications in first or second person?
First.
Ex: In that STAFF SERGEANT SNUFFY L. LIAR, United states Air Force.....
378
List the steps of creating a proof analysis
The first step in preparing a proof analysis is to list the charge and the elements to the charge the accused has allegedly violated.
The second step is to list the evidence the government will use to prove each element of the charge
The third step is to consider and list any potential defenses that may arise.
Last, consider and list any potential evidentiary problems
379
What's the statute of limitations for an NJP?
2 years
380
How long after an NJP appeal does a mbr have to wait before requesting the punishments be stayed?
5 days. This applies to punishments with restraint (correctional custody, restrictions, or arrest in quarter, or extra duties.
381
WRT NJP, list the punishment limitations
Arrest in quarters may not be imposed in combination with restriction.
Correctional custody may not be imposed in combination with restriction or extra duties.
Restriction and extra duties may run concurrently, but the combination may not exceed the
maximum imposed for extra duties. For example, a commander (major [O-4]) may combine
45 days extra duty (maximum authorized) and 45 days restriction for a MSgt.
382
WRT NJP, who can demote a SMSgt or CMSgt one grade?
MAJCOM commanders,
commanders of unified or specified commands, or
commanders to whom promotion authority to these grades has been delegated.
383
WRT NJP, who can reduce MSgts by one grade?
commanders who are lieutenant colonel or above.
384
WRT to NJPs, who can impose NJP on an officer?
Only commanders in the rank of colonel or above may impose Article 15 punishment upon officers.
Only a GCMCA or general officer may impose forfeitures and arrest in quarters to officers.
385
Can an NJP action consist of no punishment?
No
386
Who makes the promotion selection record decision if an NJP for a SNCO results in a reduction to a grade below MSgt
the commander makes a filing determination because the NJP was received as a SNCO.
387
When does the decision from a commander to file the NJP in a selection record not require a review by the next senior AF commander?
If the commander imposing NJP exercises GCMCA or is a higher-level commander, the
decision to file in the appropriate selection record is not subject to review.
In a joint command if an officer other than the senior AF officer assigned (host command or
service GCMCA) makes the decision, the decision to file is not subject to review.
388
List what mitigations of NJP punishment there are
Reduction in grade to forfeiture.
Unexecuted forfeiture of pay to a lesser forfeiture of pay.
Correctional custody to extra duties, restriction, or both.
Arrest in quarters to restriction.
Extra duties to restriction.
389
How do you write on a charge sheet for a single charge and single specification?
CHARGE:
Specification:
390
How do you write on a charge sheet for more than one charge and more than one specification?
CHARGE I:
Specification 1:
Specification 2:
CHARGE II:
Specification 1:
Specification 2:
391
What does the preferral package contain?
Charge sheet (DD Form 458).
Commander’s indorsement.
Personal data sheet (PDS).
ROI.
Statement of understanding regarding recoupment.
392
WRT Preferral, what does the commander's indorsement addressed to the SPCMCA from the members immediate commander include?
This indorsement addresses the accused’s character of service before the date of the offense(s), rehabilitation potential, recommendations for referral of charges to a specified court (summary, special, general), whether the evidence supports the charge(s), and a retention recommendation.
393
Who can administer the oath to the accuser wrt preferral?
The person administering the oath to the accuser must be a commissioned officer and, normally, is a judge advocate, administrative officer, director of administration, or chief of administration.
394
When can a major or minor change be made to any charge or specification before referral?
so long as it does not require reopening the Article 32, UCMJ preliminary hearing.
395
What are the three basic parts of the special orders convening a CM?
Heading - The first part contains the Department of the Air Force (DAF) complete unit designation, MAJCOM, special order number, and date.
Body - The second part identifies the type of court convened, where it may proceed, and the members detailed to the court.
Close- The third part contains the convening authority’s signature block, distribution, and SO number in the lower right-hand margin. If the authority to sign the convening order has been delegated to the SJA, his or her signature block will appear below that of the convening authority.
396
If the convening authority derives the jurisdiction by designation from the SAF according to Article 22(a)(8), UCMJ, to convene GCMs or Article 23(a)(7), UCMJ, to convene SPCMs, the first paragraph of the convening order must what?
cite the order designating that authority (AFI 51–201).
397
What are the special order prefixes?
A - GCM
AB-SPCM
AC-SCM
AD - SPCM by MJA
398
What does the first order in a new FY have to state at the top?
The first order of the year has a statement at the top, before the heading, giving the number of the last order of the year; for example: “Special order AB–2 dated 20 September 2018 was the last special order of this headquarters published in fiscal year 18.”
399
What happens if you need to make a third amendment to a convening order?
to publish a new order convening the court with a savings clause that transfers all cases the court has not yet assembled to the new order. You must ensure all amendments to a convening order, and all convening orders with a savings clause cite all prior orders.
400
Who may be tried by SCM?
enlisted members subject to the UCMJ for any noncapital case offense made
punishable by the UCMJ.
401
Who is the "judge" in a SCM?
one active duty commissioned officer who is normally a judge advocate in the rank of captain (O–3) or above
402
Does the constitution or other statute establish the right for the accused to have counsel at an SCM?
the Constitution nor any other statute establishes the right for the member to have counsel at an SCM.
403
What punishments may an SCM impose?
Confinement for 30 days.
Hard labor W/O confinement for 45 days.
Restriction for 2 months.
Forfeiture of two-thirds pay for one month.
Fine.
Reduction to the lowest pay grade.
A reprimand.
NOTE: Enlisted members in the grade of E–5 (SSgt) or above may not receive confinement, hard labor without confinement, or reduction, except to the next pay grade.
404
What is the process of the SCM?
SCMO examines charge sheet, allied papers, and ACC records for errors.
Preliminary proceeding where ACC gets charge sheet and informed of rights. The ACC can object to SCM BEFORE arraignment
SCMO reads charges and asks for ACC's plead to each specification and charge. SCMO also rules on any motions and receives pleas.
SCMO examines all evidence and hears testimony.
SCMO determines guilt or innocence and adjudges sentence if needed.
Acc informed of right to submit matters to convening auth.
ROT prepared on 2329
405
What are the max punishments for a SPCM by MJA?
Confinement for six months.
Forfeiture of two-thirds pay per month for six months.
Fine.
Hard labor without confinement for three months.
Reduction to airman basic (E–1).
Reprimand.
406
What are the max punishments for a SPCM?
Confinement for one year.
Forfeiture of two-thirds pay per month for one year.
Fine.
Hard labor without confinement for three months.
Reduction to E–1.
Reprimand.
407
What are the max punishments for a GCM?
Dismissal (officers) or a DD (enlisted).
Total forfeiture of pay and allowances.
Confinement for life.
Death.
408
What are the sequential actions of the Art 32 process?
1. PHO informs accused of their rights under R.C.M. 405(f).
2. Counsel for the government presents evidence.
3. Defense counsel may cross-examine adverse witnesses.
4. PHO may question witnesses.
5. Defense counsel may present matters
6. Counsel for the government may cross-examine adverse witnesses.
7. PHO may question witnesses.
8. Hearing closes.
9. The government, accused, and named victim have 24 hours to submit supplemental
information for consideration by the convening authority (R.C.M. 405(k)(1), AFI 51–201.
Paragraph 7.6, Supplementary Information).
10. If counsel for the government or the victim submits matters, defense counsel has five days
from the closure of the preliminary hearing to rebut (R.C.M. 405(k)(2)).
11. The PHO assembles the preliminary PHO report and delivers it to the SJA within eight days
of the closure of the hearing or receipt of supplementary information.
12. The accused has five days to submit objections to the PHO report (R.C.M. 405(l)(5) AFI 51–
201, Paragraph 7.9, Objecting to the PHO Report).
13. The SPCMCA decides to recommend a GCM.
14. SPCMCA makes the recommendation in writing to the GCMCA.
15. SPCMCA directs the SPCMCA SJA to send the charge sheet, all evidence, and a list of
potential members to the GCMCA.
16. GCMCA receives written pretrial advice from the GCMCA SJA.
17. GCMCA decides on a GCM, selects the court members, and completes the referral of
charges.
18. GCMCA directs the GCMCA SJA to prepare the convening order and forward all documents
back to the base for trial.
409
How long after the PHO report is completed and served upon the ACC and counsel do they have to object to the report?
5 days of receipt
