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Military Law – Week 6 Jay Canham

Military Law – Week 6 Jay Canham. The Sixth Amendment. 6 th Amendment. “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”. Rule for Court-Martial 707.

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Military Law – Week 6 Jay Canham

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  1. Military Law – Week 6Jay Canham The Sixth Amendment

  2. 6th Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”

  3. Rule for Court-Martial 707 Speedy trial clock starts and the Accused shall be brought to trial within 120 days of the earlier of the two: • The swearing to of formal criminal charges…called the preferral of charges; or • The imposition of pretrial restraint: Confinement or Restriction.

  4. Article 10 of the UCMJ If a confined Accused can establish that the government could readily have gone to trial much sooner, but negligently and spiteful choose not to, there is a speedy trial violation!

  5. Speedy Trial Clause The Speedy Trial Clause bans only undue delays. In the military, delays which are not held against the government include: • Delay for a competency hearing of the accused • Delays because of requested continuances by the accused. • Delays due to pretrial motions or appeals of any motions. • Delays due to the litigation of a complex case.

  6. Consequences for Violating the Speedy Trial Clause Where the Accused is in pretrial confinement: • Dismissal without prejudice. Case is dismissed, but allows a future prosecution for the same offense. In this situation, you have speedy trial violation with confinement, but no Article 10 violation. • Dismissal with prejudice. Bars future prosecution for the same offense when you have both an Article 10 violation and confinement! In non-confinement cases: • If there is a Speedy Trial Violation…Military Judge may award Dismissal with or without prejudice!

  7. The 5th Amendment “ …no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a Grand Jury…”

  8. Investigating Officer’s (IO) Report • A transcript of what was presented at the Investigation. • Standard to be met: Reasonable grounds that an offense has been committed. • Recommendation on the disposition of the case.

  9. Article 32 Investigation: The Military’s Preliminary Hearing • Prior to any service-member being sent to a GCM…the accused will have the benefit of an Article 32 Investigation; and • Impartial investigation…to include an inquiry as to the truth of the charges; and • Consideration of the form of charges; and • A recommendation of the disposition of the case.

  10. Rights of an Accused Rights of an Accused at the Article 32 Investigation: • Rights to counsel attaches, to include a civilian attorney. • Right to be present and confront witnesses. • Right to be informed of the charges & view evidence. • Right to present evidence Normally a public hearing, but may be closed by the IO.

  11. Creation of a General Court-Martial (GCM): 4-Step Process • First Step: The Article 32 Investigation • Second Step: The Article 33 advice letter: Created after a review of the Article 32 Investigation and sent to the Staff Judge Advocate of the GCM Convening Authority. • Third Step: The Article 34 Advice letter: Drafted by the Staff Judge Advocate (SJA) and is the lawyer’s review of all documents with the recommendations on how to proceed to the GCM Convening Authority. • Fourth Step: GCM Convening Authority reviews the Article 32 Investigation, Article 33 Advice Letter and Article 34 Advice letterand decides whether to convene a General Court-martial.

  12. Military Law – Week 6Jay Canham The Sixth Amendment

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