Advice to Accused Regarding Counsel

While the MCM, 1984, created no statutory right to detailed military defense counsel at an SCM, the CA may still permit the presence of such counsel if the accused can obtain such counsel. However, the MCM, 1984, has created a limited right to civilian defense counsel at SCMs. The accused has a right to hire a civilian lawyer and have that lawyer appear at trial, if such appearance will not necessarily delay the proceedings and if military exigencies do not prevent it. The accused must, however, bear the expense involved. If the accused wishes to retain civilian counsel, the SCM officer should allow him or her a reasonable time to do so.

An accused has no right to military counsel at an SCM. However, if an accused was not given an opportunity to consult with counsel before accepting an SCM, the SCM will be inadmissible at a later trial by court-martial. The term independent counsel means a lawyer qualified within the meaning of Article 27(b), UCMJ, who, in the course of regular duties, does not act as the principal legal advisor to the CA.

To be admissible at a later trial by court-martial, evidence of an SCM at which an accused was not actually represented by counsel must affirmatively demonstrate that:

l the accused was advised of his or her right to confer with counsel before deciding to accept trial by SCM;

l the accused either exercised his or her right to confer with counsel or made a voluntary, knowing, and intelligent waiver; and

l the accused voluntarily, knowingly, and intelligently waived his or her right to refuse an SCM.

If an accused has been properly advised of his or her right to consult with counsel and to refuse an SCM, his or her elections and/or waiver in this regard are made in writing and are signed by the accused. Use a form similar to that shown in figure 7-1 to record the advice/waiver. It should be made on a page 13 of the accused's service record with a copy attached to the record of trial. The Acknowledgement of Rights and Waiver, properly completed, contains all the necessary advice to an accused. When it is properly executed, it will establish a voluntary, knowing,

Figure 7-1.-Summary court-martial acknowledgement of rights and waiver.

Figure 7-1.-Summary court-martial acknowledgement of rights and waiver-Continued.

and intelligent waiver of the accused's right to consult with counsel and/or his or her right to refuse trial by an SCM. Assuming Booker warnings have been given (proper advice and recordation of election/waivers), evidence of the SCM will be admissible at a later trial by court-martial as evidence of the character of the accused's prior service.

Final Pretrial Preparation

After the pretrial interview, the SCM officer determines whether the accused has decided to accept or refuse trial by SCM. If the accused needs more time to decide, it should be provided. If the case is to proceed, the witnesses or the description of other evidence that the accused wishes presented at trial should be identified. The SCM officer arranges for a time and place to hold the open session of the trial. These arrangements are made through the legal officer, and the SCM officer notifies all personnel involved of the time and place of the first meeting.

The SCM officer plans an orderly trial procedure to include a chronological presentation of the facts. Appendix 9, MCM, is an SCM trial guide. The SCM officer should follow it closely and precisely during the hearing. The admissibility and authenticity of all known evidentiary matters are determined and numbers are assigned to all exhibits to be offered at trial. The evidence reviewed by the SCM officer includes not only that contained in the original file, but also any other relevant evidence discovered by other means. The SCM officer has the duty of making sure all relevant and competent evidence in the case, both for and against the accused, is presented. It is the responsibility of the SCM officer to make sure only legal and competent evidence is received and considered at the trial. Only legal and competent evidence received in the presence of the accused at trial can be considered in determining the guilt or innocence of the accused. The Military Rules of Evidence apply to an SCM and must be followed. If a question regarding admissibility of evidence arises, the SCM officer may seek assistance from the local naval legal service office (NLSO) in resolving the issue.

The SCM is authorized to issue subpoenas to compel the appearance at trial of civilian witnesses. In such a case, the SCM officer follows the same procedure detailed for an SPCM or a GCM trial counsel (TC). TRIAL PROCEEDINGS

The actual trial procedure, while somewhat different from that of the GCM or the SPCM, is governed by the same general principles and has the same basic procedures as those for courts-martial. The major steps of the SCM include the arraignment, motions, pleas, presentation of the evidence, and findings and sentence. Each of these steps will be reviewed individually.