Withdrawal of Charges

Withdrawal of charges is a process by which the CA takes from a court-martial a case previously referred to it for trial. The CA cannot withdraw charges from one court and re-refer them to another without proper reasons. These reasons are articulated in writing by the CA and included in the record of trial when the case is tried by the second court. The CA may withdraw charges for the purpose of dismissing them for any reason deemed sufficient to him or her. Mechanically, accomplish the withdrawal by drawing a diagonal line across the referral block on page 2 of the charge sheet and have the CA initial the line-out. It is also advisable to write withdrawn across the endorsement and date the action.

DISESTABLISHMENT OF THE COURT.- Perhaps the most frequently occurring withdrawal problem is presented when the CA wants to disestablish the court and create another to take its place. This usually happens when several members have been transferred, or the particular court has been in existence for a long time, and the CA wants to relieve the court. Such grounds are valid and constitute a proper reason. If evidence shows that a change was made because the CA was displeased with the leniency of a sentence or the number of acquittals, then the withdrawal would not be lawful. Whenever a new court relieves an old one, it creates a problem with respect to the cases previously referred to the old court (which was, disestablished and are now being referred to the new court. Remember, only the court to which a case is specifically referred can try it. The CA can withdraw each case from the old court (by lining out the referral block) and then re-refer the case to the new court. This action is accomplished by executing a new block 14 referral on the charge sheet, indicating the serial number and date of the convening order that appoints the new court. The new referral is taped along the top edge over the old lined-out referral to allow inspection of both referrals.

CHANGE IN COURT-NO DISESTABLISH-MENT.- Sometimes a CA may have good cause for withdrawing a case from a court that he or she does not intend to disestablish. For instance, one of several court panels may be backlogged and the CA may wish to redistribute the pending cases. This action is accomplished by lining out and initialing the old referral block on the charge sheet and executing a new block 14 re-referring the case to a new court. The new block 14 is taped over the old one to allow inspection of both referrals.

Amendment of Charges

In some instances, an amendment to a specification will necessitate further administrative action with respect to the charge sheet. Minor changes in the form of correction of typographical errors normally will require no more administrative action than lining out and initialing the erroneous data and substituting the correct data. If, on the other hand, the contemplated change involves any new person, offense, or matter not fairly included in the charges as originally preferred, the amended specification must go through the preferral-referral process or the accused can exercise his or her right to object to trial on the unsworn charges.

Additional Charges

If an accused awaiting trial on certain charges commits new offenses, or other previously unknown offenses are discovered, an entirely new charge sheet is prepared. The CA states, in the special instructions section of the referral block, that the additional charges are to be tried together with the charges originally referred to the court-martial.

TRIAL PROCEDURE

It is not necessary that you have a complete understanding of all the complex rules and procedures applicable to the SPCM. However, it is essential that you have a general knowledge of the mechanics of the trial process. Though an infinite number of variations exist in any particular case, the following procedure is generally followed in most SPCMs.

Service of Charges

In time of peace no person can be brought to trial in any SPCM until 3 days have elapsed since the formal service of charges upon that person. In computing the 3-day period, neither the date of service nor the date of trial count. Sundays and holidays do count, however, in computing the statutory period. If the accused is served on Wednesday, one must wait Thursday, Friday, and Saturday before compelling trial. Trial in this example could not be compelled before Sunday, and, as a practical matter, not before

Monday. You will find that at U.S. shore establishments, trials normally do not occur on the weekends. However, when ships are at sea or in overseas ports, a trial is possible at any time and any day of the week.

The date of service of charges upon the accused is reflected by the certificate in block 15 at the bottom of page 2 of the charge sheet. The TC normally executes this certificate when he or she presents a copy of the charge sheet to the accused personally. He or she must do this even though the accused has previously been informed of the charges against him or her. This service of a copy of the charge sheet may also be done by the command at any time after referral as long as the service is to the accused personally. Any accused can lawfully object to participating in trial proceedings before the 3-day waiting period has expired. The accused may, however, waive the 3-day period, so long as he or she understands the right and voluntarily agrees to go to trial earlier.

Pretrial Hearings

After the 3-day period has elapsed, the military judge may hold sessions of court without members for the purpose of litigating motions, objections, and other matters not amounting to a trial of the accused's

guilt or innocence. The accused may be arraigned and his or her pleas taken and determined at such a hearing. At such hearings, the judge, TC, DC, accused, and reporter will be present. Several such hearings may be held if desired. These hearings are commonly referred to as Article 39(a) sessions.

Preliminary Matters

At the initial pretrial hearing (Article 39(a) session), the first order of business is to incorporate into the record those documents relating to the convening of the court and referral of the case for trial. Also all oaths are administered. The convening order and the charge sheet and any amendments to either document become matters of record at this point in the proceedings.

In addition, an accounting of the presence or absence of those personnel required to be present is made. This accounting includes all persons named in the convening order, the counsel, the reporter, and the military judge. Qualifications of all personnel are checked for the record.

The Arraignment

The arraignment is the procedure involving the reading of the charges to the accused and asking for the accused's pleas. The actual pleading is not part of the arraignment. The arraignment is complete when the accused is asked to enter his or her pleas. This stage is an important one in the trial because if the accused voluntarily absents himself or herself without authority and does not thereafter appear during court sessions, he or she may nevertheless be tried and, if the evidence warrants, convicted. The arraignment is also the cutoff point for the adding of additional charges to the trial. After arraignment, no new charges can be added without the consent of the accused.

Motions

At arraignment, the military judge advises the accused that his or her pleas are about to be requested and that if he or she desires to make any motions he or she should now do so. Many times all such motions (attacking jurisdiction, sufficiency of charges, illegal pretrial confinement, and speedy trial) will have already been litigated at a previous pretrial hearing. Nevertheless, the accused may decide to make additional motions and is allowed to do so. If there are motions, they are litigated at this time. If there are no motions, the trial proceeds to the arraignment.

Pleas

The arraignment is the process of asking the accused to plead to charges and specifications. The responses of the accused to each specification and charge are known as the pleas. The recognized pleas in military practice are guilty, not guilty, guilty to a lesser included offense, and, under some circumstances, a conditional plea of guilty. Any other pleas (such as nolo contendere) are improper, and the military judge enters a plea of not guilty for the accused.