CHAPTER 7 COURT-MARTIAL TRIALS

Trial procedures differ according to the type of court convened to hear the case. Summary courtsmartial (SCM) are convened to try relatively minor offenses and they use a simple form of procedure. Special courts-martial (SPCM) try serious offenses that are deemed to be beyond the scope of an SCM but not serious enough to warrant trial by general courtsmartial (GCM). The major differences in these types of courts-martial are the maximum punishments that each may adjudge and the manner in which you prepare the records of proceedings.

This chapter examines the types of courts-martial, the procedures each uses, and other procedural matters that occur before and during trial. In our discussion of trial procedures, it is necessary to treat the SCM separately because its procedures are much different from those of the SPCM and GCM.

THE SUMMARY COURT-MARTIAL

An SCM is the least formal of the three types of courts-martial and the least protective of individual rights. The SCM is a streamlined trial process involving only one officer who performs the duties of prosecutor, defense counsel, judge, and members. The purpose of this type of court-martial is to dispose of relatively minor offenses. The one officer assigned to perform the various roles must inquire thoroughly and impartially into the matter concerned to make sure both the United States and the accused receive a fair hearing. The SCM is a streamlined procedure that provides less protection of the rights of the accused than other forms of court-martial. The maximum imposable punishment that an SCM can award is very limited. Furthermore, it may try only enlisted personnel who consent to be tried by SCM.

As the SCM has no civilian equivalent, it is strictly a creature of statue within the military system. While it is a criminal proceeding at which the technical rules of evidence apply and at which a finding of guilty can result in loss of liberty and property, there is no constitutional right to representation by counsel. Therefore, it is not a truly adversarial proceeding. CREATION OF THE SUMMARY COURT-MARTIAL

An SCM is convened (created) by an individual authorized by law to convene an SCM. Article 24, Uniform Code of Military Justice (UCMJ); Rules for Courts-Martial (R.C.M.) 1302a, Manual for Courts-Martial (MCM), 1984; and Manual of the Judge Advocate General (JAGMAN) 0120c identify those persons who have the power to convene an SCM. These individuals include any person who may convene a GCM or an SPCM; or the commanding officer (CO) or officer in charge (OIC) of any other command when empowered by the Secretary of the Navy (SEC-NAV).

The authority to convene an SCM rests in the office of the authorized command vice in the person of its commander. For example, Captain Doe, U.S. Navy, has SCM convening authority while performing his or her duties as Commanding Officer, USS Mississippi. When Captain Doe goes on leave or is absent from his or her command for other reasons, he or she loses his or her authority. The power to convene an SCM is nondelegable and in no event can a subordinate exercise such authority "by direction." When Captain Doe is on leave from his or her ship, his or her authority to convene an SCM passes to his or her temporary successor in command (usually the executive officer) who, in the eyes of the law, becomes the acting CO.

COs or OICs not empowered to convene an SCM may request such authority by following the procedures contained in the JAGMAN.

Restrictions on Authority to Convene

Unlike the authority to impose nonjudicial punishment (NJP), a competent superior commander may restrict the power to convene SCMs. Furthermore, the commander of a unit attached to a ship should, as a matter of policy, refrain from exercising his or her SCM convening powers. He or she should refer such cases to the CO of the ship for disposition while the unit is embarked. This policy does not apply to commanders of units that are embarked for transportation only. When an individual has already been tried by a state or foreign court, you must obtain permission from the officer exercising general court-martial jurisdiction (OEGCMJ) before imposition of NJP or referral to an SCM. Offenses that have already been tried in a court deriving its authority from the United States (such as U.S. District Courts) may not be tried by court-martial.

If the convening authority (CA) or SCM officer is the accuser, it is discretionary with the CA as to whether to forward the charges to a superior with a recommendation to convene the SCM or convene the court himself or herself. If the SCM officer is the accuser, the jurisdiction of the SCM is not affected.

Mechanics of Convening

Before bringing any case before an SCM, you must properly convene the court. You create an SCM by the order of the CA detailing the SCM officer to the court. The convening order will specify that it is an SCM and appoint the SCM officer. Additionally, the convening order may designate where the courtmartial will meet. If the CA derives his or her power

from designation by SECNAV, include this information in the order. Each convening order is assigned a court-martial convening order number. The CA personally signs the convening order showing his or her ^name, grade, and title, including organization and unit.

The MCM, 1984, authorizes the CA to convene an SCM by notation on the charge sheet signed by the CA. However, the better practice is to use a separate convening order for this purpose. Appendix 6b of the MCM, 1984, contains a suggested format for the SCM convening order. Also discussed in chapter 6 is the proper preparation of a convening order.