PRETRIAL REVIEW OF CHARGE SHEET

What do you look for when reviewing charge sheets and allied papers before trial? Well, the answer is not standard because every SJA and NLSO operation throughout the world has its uniqueness because of geographical responsibilities. As a senior LN, it will be your responsibility to be able to adapt to these local requirements. The following are the basic procedures that are common to all pretrial reviews.

Purpose of Review

Aside from the routine review of a charge sheet, the critical area is whether or not the specification(s) is/are sufficient. In other words, if a specification of which an accused has been found guilty fails to allege an offense under the UCMJ or shows lack of jurisdiction, the proceedings as to that specification will not be legally valid and have no legal effect. If a specification alleges an offense under the UCMJ, proceedings as to that specification should not be held invalid solely because the specification is defective; however, if it appears from the record that the accused was, in fact, misled by the defect or that his or her substantial rights were otherwise materially prejudiced, appropriate corrective action must be taken.

The test of sufficiency of a specification is not whether it could have been made more definite or certain, but whether the facts alleged and reasonably implied set forth the offense sought to be charged with sufficient clarity to inform the accused of what he or she must defend against. Whether the record is sufficient to enable him or her to avoid a second prosecution for the same offense must also be considered in applying the test.

Sworn Charges

Once the charges and specifications have been prepared, they are signed and sworn to by the accuser before an officer authorized to administer oaths and must state both that the signer has personal knowledge of, or has investigated, the charges set forth, and that they are true to the best of his or her knowledge and belief. The accuser must be a person subject to the UCMJ. Usually, the CO has the officer who conducted the preliminary investigation sign the charges.

Statute of Limitations

Except for certain offenses, there is a time limit specified in Article 43, UCMJ, within which a person may be charged with an offense. Unless the statute of limitations has been tolled, extended, or suspended, or unless the offense is one for which there is no limitation, sworn charges must be received by the officer exercising SCM jurisdiction over the command within the specified time. See Article 43 for the statute of limitations on all offenses under the UCMJ.

Jurisdiction

An important area of review is jurisdiction. Let's examine jurisdiction and see why it is critical when an offense has been alleged. After all, if the government does not have the jurisdiction over the accused, it cannot try the case.

JURISDICTION OVER THE ACCUSED.- Generally speaking, a court-martial has jurisdiction to try only military members on active duty. Therefore, each specification must clearly indicate that the accused is on active duty. Jurisdiction over the accused normally begins with a valid enlistment and ends with delivery of valid discharge papers.

In most cases, there is little doubt that the accused is on active duty; that is, he or she has validly enlisted. However, even when there is no valid enlistment, the accused may still be subject to court-martial jurisdiction. If an enlistment ceremony has occurred, but is for some reason invalid, the doctrine of constructive enlistment may apply; one who acts as if he or she is in the military, accepts the pay and benefits, and wears the uniform, is deemed to be in the military even though his or her original enlistment is invalid for some reason. Article 2 of the UCMJ now provides a statutory constructive enlistment with four basic requirements as follows:

Voluntary submission to military authority

Minimum age and mental competency standards (no one under age 17 may be subject to military jurisdiction by force of law)

Receipt of military pay or allowances

Performance of military duties

If these requirements are met, a person is subject to the UCMJ until properly discharged, despite any recruiting defect.

The possibility of the exercise of military jurisdiction ends with the delivery of a discharge certificate with the intent to effect separation. This is true even though the offense was committed while on active duty.

Three potential exceptions exist to the general rule concerning discharge as follows: . In the very unusual case contemplated by Article 3(a), UCMJ, (serious offenses committed off base overseas), jurisdiction will continue into a subsequent enlistment.

. When a person is discharged before the expiration of his or her term of enlistment for the purpose of reenlistment and, thus, there has been no interruption of his or her active service, court-martial jurisdiction exists to try the member for offenses committed during the prior enlistment. Note, however, that jurisdiction is ended by a discharge at the end of an enlistment even though the service member immediately reenters the service. l If a person fraudulently obtains the delivery of the discharge papers, jurisdiction is not lost.

JURISDICTION OVER THE OFFENSE.- Before the Supreme Court's decision in U.S. v. Soloria it was necessary to show that an offense committed off base had a service connection in order for a court-martial to have jurisdiction. The Soloria decision held that the accused's status as a person subject to the UCMJ, and not the subject matter of the offense, was the test for court-martial jurisdiction. Accordingly, it is no longer necessary to plead subject matter jurisdiction in a specification.