Pretrial Confinement

Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges.

The MCM requires that each person confined be promptly informed of the following:

The nature of the offense for which he or she is 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 government, and the right to request assignment of military counsel free of charge

. The procedures used to review pretrial confinement

Not later than 72 hours after ordering an accused into pretrial confinement, or after receipt of a report that a member of a commander's unit or organization was confined, the commander is to decide whether pretrial confinement will continue. The command is to direct the accused's release unless it believes upon probable cause; that is, upon reasonable grounds, that: an offense triable by court-martial ^was committed, l the accused committed the offense, and

l confinement is necessary because it _is foreseeable that the accused will not appear at ^trial, pretrial hearing, or investigation, or the accused will engage in serious criminal misconduct, and less severe forms of restraint are inadequate.

A person should not be confined as a mere matter of convenience or expedience. Some factors that should be considered are as follows: l l l l l l l

The nature and circumstances of the offenses charged or suspected, including extenuating circumstances

The weight of the evidence against the accused

The accused's ties to the locale, including family, off-duty employment, financial resources, and length of residence

The accused's character and mental condition

The accused's service record, including any record of previous misconduct

The accused's record of appearance at or flight from other pretrial investigations, trials, and similar proceedings

The likelihood that the accused can and will commit further serious criminal misconduct if allowed to remain at liberty

In determining if pretrial confinement is the proper form of restraint, the command should judge the reliability of the information available. Before relying on the reports of others, the commander must have a reasonable belief that the information is believable and has a factual basis. The command can base a decision on oral or written information. This information need not be under oath, but an oath may add to its reliability. The command may examine the accused's personnel records, police records, and may consider the recommendation of others. Less serious forms of restraint must always be considered before pretrial confinement may be approved. Therefore, the commander should consider whether the accused could be safely returned to his or her unit, at liberty or under restriction, arrest, or conditions on liberty.

If the commander approves continued pretrial confinement, he or she is to prepare a written memorandum justifying continued confinement. The memorandum may include hearsay and may incorporate by reference other documents, such as witnesses' statements, investigative reports, or official records. The commander forwards this memorandum to the reviewing officer. If the commander had prepared a memorandum before ordering confinement, a second memorandum need not be prepared. However, information may be added to the memorandum at any time.

CONFINEMENT ORDER AND PRETRIAL CONFINEES.- Most brigs have their own instructions on local requirements such as minimum seabag needs, visiting hours, and release times. Obtain a copy of the local instruction for further guidance. See also the Navy Corrections Manual, SECNAVINST 1640.9, and OPNAVINST 1640.6 for all brig procedures.

For pretrial confinees, prepare a Confinement Order, NAVPERS 1640/4. The procedures for the preparation of confinement orders are contained in chapter 8. The only difference in a pretrial confinement order and a posttrial confinement order is that you will fill out the section titled Detained and not the section titled Confined as a Result Of. You also need to fill in the section Pretrial Confinement Necessary. You will normally need an original and three copies. Check the local requirements to determine whether to send dental, medical, and pay ^{records to the brig.} Have the accused's division officer or the chief master-at-arms assist the accused in obtaining the seabag requirements for the brig. Check local requirements to determine whether the brig requires TEMADD orders. Do not use temporary duty (TEMDU) orders for pretrial confinement. Have the member escorted to the medical department for the confinement physical. NOTE: The doctor must sign the confinement order.

REVIEW OF PRETRIAL CONFINEMENT.- As mentioned previously, after the member is confined, the CO must determine, within 72 hours, that continued confinement is warranted. The command should be prepared to send a knowledgeable representative to the hearing held by the initial review officer (IRO). This representative should be cognizant of (1) the circumstances regarding the charges; (2) the accused's past history for reliability; and (3) unauthorized absences. After the hearing by the IRO, the command will receive a memo either allowing the confinement to continue or ordering the accused's release. If the member is ordered released, the command must comply. A lesser form of restraint may be imposed, but reconfinement may not occur without further misconduct or new evidence that would impact on the accused's reliability. If pretrial confinement is to extend to 30 days, permission for continued confinement must be obtained from the cognizant GCM authority. Make sure permission is received before the expiration of the 30th day, and the request must be reviewed every 30 days after that.

LETTER TO INITIAL REVIEW OFFICER.- The OEGCMJ at the location of the confinement facility designates one or more officers of the grade of O-4 or higher to act as the IRO for purposes of pretrial confinement. The IRO maintains a copy of the documents considered and the memorandum prepared under R.C.M. 305(i)(6) in each case until completion of appellate review. The IRO then sends a copy of the documents considered and the memorandum prepared to the OEGCMJ from whom he or she derived the authority as IRO. The officers designated as IROs should be neutral and detached, should be selected for their maturity and experience, and, if practical, should have had command experience. A sample letter from a CO to an initial pretrial review officer is shown in figure 6-22.

MATTERS CONSIDERED.- The review by the IRO is a review of the memorandum submitted by the accused's commander. Additional written matters may be considered, included any submitted by the accused, The accused and his or her counsel, if any, can appear before the IRO and make a statement, if possible. A representative of the command may appear before the IRO to make a statement. In most cases, this representative will be you or one of your subordinates.

The IRO may, for good cause, extend the time limit for completion of the initial review to 10 days after pretrial confinement is imposed.

The requirements for confinement discussed previously need not be proven beyond a reasonable doubt, but by a preponderance of the evidence.