CHAPTER 6 PRETRIAL MATTERS

Pretrial matters take on a significant importance to the successful completion of any trial by court-martial. For a case to go before a court-martial, certain pretrial matters must be accomplished. These pretrial matters extend not only to paper work but also to acts that must be taken care of before the trial. In this chapter we discuss the different types of pretrial matters.

PRETRIAL PAPER WORK

There are numerous situations in which you will play an important role such as the preparation of charge sheets, pretrial agreements, grants of immunity, individual military counsel requests, witness requests, flyers, findings and sentence worksheets, and seating charts for members. The office you are assigned to depends on what pretrial items you will prepare. However, there is no doubt that you will be involved in some aspect of pretrial paper work.

CHARGE SHEET

One of your most important pretrial duties is the preparation of the Charge Sheet, DD Form 458, which is shown in figure 6-1. You will most likely draft the charge(s) and specification(s), particularly if there is no judge advocate available.

Charges and Specifications

The officer conducting a preliminary inquiry on a serious offense usually completes the charge sheet and delivers it with the preliminary inquiry report. Then, if the commanding officer (CO) orders a pretrial investigation, the charge sheet is available for the investigating officer's use. You must prepare this formal written accusation, known as the charges and specifications, before any accused is tried.

The charge lists, by number, the article of the Uniform Code of Military Justice (UCMJ) that the accused has allegedly violated. The specification states specifically what the accused did or caused to violate the Code. The specification must allege all the elements of the offense. The specification also contains jurisdictional allegations. Jurisdictional allegations are the facts that show the court has jurisdiction over the accused and the offense. The specification further identifies the accused and gives the details that form the violation. These details include the where, when, and how of the offense.

Courts-martial have been disapproved on review by higher authority because of faulty or "fatally defective" specifications, even though the accused has been convicted. The Manual for Courts-Martial (MCM) contains forms for drafting charges and specifications for most offenses. Do not alter these forms.

NUMBERING OF CHARGES AND SPECI-FICATIONS.- If there is only one charge, do not number it. If more than one charge exists, number each charge in order using Roman numerals I, II, and so on. Charges that are preferred after other charges have been preferred are called additional charges and are also numbered using Roman numerals. However, the word Additional must appear in front of the word Charge; for example, Charge I: Violation of the Uniform Code of Military Justice, Article 86; Additional Charge I: Violation of the Uniform Code of Military Justice, Article 86.

In numbering specifications, use Arabic numerals 1, 2, 3, and so on. If there is only one specification under the charge, do not number it. Designate the specifications under additional charges in the same manner as for regular specifications. Do not use the word Additional with the specifications.

DRAFTING OF CHARGES.- The charge should be appropriate to all specifications under it, and is _written: "Violation of the Uniform Code of Military _{Justice, Article ,"} giving the number of the article.

DRAFTING OF SPECIFICATIONS.- A specification should be brief but complete and must contain the following essential elements:

l Rate of accused

l Name of accused

l Branch of service of accused

l Unit of accused

s Time of alleged offense based on a 24-hour clock

Figure 6-1A.-Charge Sheet, DD Form 458 (front).

Figure 6-1B.-Charge Sheet, DD Form 458 (back).

l Place of alleged offense l Statement of facts that allege the offense

In pleading these elements on the charge sheet, you should stick to certain rules such as the following: l In pleading rate, spell out the words instead of using the abbreviation for the rating; for example, Storekeeper Third Class, Seaman, and Hospitalman Third Class. If the rank or grade of the accused has changed since the date of the alleged offense(s), identify the accused by his or her present rank or grade followed by his or her former rank or grade; for example. In that Seaman John A. Doe, U.S. Navy, then Seaman Apprentice John A. Doe, U.S. Navy . . . . . Set forth the accused's first name, middle initial or name, and last name in that order. Capitalize the first letters in each name only; for example, Seaman John Adam Doe or Seaman John A. Doe. Charge the accused under the name he or she admits to be his or her true name. If the accused is known by more than one name, usc the acknowledged name of the accused. List the true name of the accused first, followed by any known aliases; for example, In that Seaman John A. Doe, alias Seaman John A. Doezynckyski . . . . . Never allege the social security number (SSN) of the accused. . Show the branch of service as U.S. Navy, U.S.

Naval Reserve, or U.S. Marine Corps. l In the unit or organization portion, show only the name of a ship. Do not allege the hull number. Capitalize only the first letter of the ship's name; for example, USS Independence. In alleging shore or overseas activities, give the name and the location of the activity. For overseas activities, you may use FPO or APO numbers instead of the physical location. You can use Roman or Arabic numerals if they are a part of the title of the unit. . In alleging personal jurisdiction for military members on active duty, the phrase on active duty must be added immediately after the description of the accused. Also, for members of Reserve components on active duty, the specification must contain the phrase on active duty. Since reservists not on active duty are not subject to the UCMJ, failure to show that the member is on active duty is sufficient cause to raise the question of jurisdiction. . In alleging times and dates, use a 24-hour clock; that is, time runs 0100, 0200, 0300, up to 2400. Where the date or exact time is uncertain, use the phrase at or about or on or about; for example, In that ***** did, at or about 1223 hours, on or about 17 July 19CY . . . . The exact hour of an offense is not normally alleged in a specification except in certain absence offenses. . In alleging the place of the offense, if the offense occurred at the accused's unit, allege as "on board said ship" or "at said base." When the offense occurs at a place other than the accused's unit, describe the location of that place in enough detail so no question arises as to its location; for example, at or near the intersection of Third and Garden Streets in the town of Pensacola, Florida. . Before drafting the specification, you should analyze the facts and refer to the pertinent paragraphs of the MCM. This is where the elements of proof of various offenses appear and examples of the forms of specifications arc shown. Include all elements of an offense. Allege any intent or state of mind that is expressly made an essential element of an offense. Thus, where appropriate, allege the offense as having been committed knowingly, willfully, wrongfully, unlawfully, without authority, or dishonorably. One specification should not allege more than one offense. However, if two acts or a series of acts constitute one offense, you may allege them together. For the vast majority of cases, you can usc the suggested forms and wording contained in part IV of the MCM. For those few cases where no form is shown, you must make sure you cover all the elements of the offense in the specification, . U.S. and USS are permissible abbreviations. Do not use any other abbreviations in specifications. . The specification is typed using the block form in what is called margin-to-margin fashion. After typing your charge line, drop down two lines and begin typing directly under the word Charge.

EXAMPLE: Charge: Violation of the UCMJ, Article 86

Specification: In that . . . . . . . . .