CHAPTER 5 COURTS-MARTIAL PROCEDURES

Courts-martial procedures differ according to the type of court. A summary court-martial has a simple procedure and is convened to try relatively minor offenses. A special court-martial is used to try serious offenses beyond the scope of a summary court-martial but not serious enough for trial by a general court-martial. The major differences in types of courts-martial are the maximum punishments adjudged and the manner in which you prepare the records of proceedings.

This chapter examines the types of courts-martial, the procedures used, and other matters that occur before and during a trial. In our discussion of trial methods, we will consider each court-martial separately. Now, let's take a look at the summary court-martial.

THE SUMMARY COURT-MARTIAL

LEARNING OBJECTIVES: Describe the creation of the summary court-martial and the preferral and referral of charges. Explain pretrial preparation and court procedures for the summary court-martial.

A summary court-martial is the least formal of the three types of courts-martial and the least protective of individual rights. The summary court-martial is a streamlined trial process involving only one officer, who performs the duties of prosecutor, defense counsel, judge, and jury. The purpose of the summary court-martial is to dispose of relatively minor offenses. One officer is assigned to perform the various roles. Since the summary court-martial affords the least protection for rights of the accused, the maximum punishment that this court can award is limited. Furthermore, only enlisted personnel who consent may be tried by summary court-martial.

The summary court-martial has no civilian equivalent. It is strictly a creature of statute within the military system. While it is a criminal proceeding, and technical rules of evidence apply and 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 true adversarial proceeding.

CREATION OF THE SUMMARY COURT-MARTIAL

An individual must be authorized by law to convene a summary court martial. Article 24, Uniform Code of Military Justice (UCMJ); Rules for Courts-Martial (R.C.M.) 1302a; Manual for Courts-Martial (MCM) 1984; and Judge Advocate General Manual (JAGMAN) 0120c identify those persons who have the power to convene a summary court-martial. These individuals include any person who may convene a special or general courts-martial; or the Commander or Officer-in-Charge of any command when empowered by the Secretary of the Navy.

The authority to convene a summary court martial rests in the office of the authorized command rather than in the person of its commander. For example, Captain Doe, U.S. Navy, has summary court-martial convening authority while performing his or her duties as Commanding Officer, USS Mississippi. When Captain Doe goes on leave or is absent from his command for other reasons he or she looses that authority. Convening power cannot be delegated, and no subordinate may exercise such authority "by direction." When Captain Doe is on leave from his or her ship, the authority to convene passes to the temporary successor in command (usually the executive officer), who, in the eyes of the law, becomes the acting commanding officer.

Commanding officers or officers-in charge not empowered to convene a summary court-martial may request such authority by following the procedures contained in JAGMAN 0121b.

Restrictions on Authority to Convene

Unlike the authority to impose non-judicial punishment, a superior commander may restrict the power to convene a summary court-martial. Further, a commander of a unit attached to a ship should, as a matter of policy, refrain from exercising his or her summary-court-convening powers. He or she should refer such cases to the commanding officer 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, permission must be obtained from the officer exercising general court-martial jurisdiction before imposition of non-judicial punishment or referral to summary court-martial. Offenses that have already been tried in a court deriving its authority from the United States (U.S. District Courts) may not be tried by courts-martial.

If the convening authority or summary courtmartial officer is the accuser, it is discretionary with the convening authority as to whether to forward the charges to a superior with a recommendation to convene the summary court-martial or convene the court himself. If the summary court officer is the accuser, the jurisdiction of the summary court is not affected.

Mechanics of Convening

Before any case can be brought before a summary court-martial, it must be properly convened. The summary court is created by order of the convening authority detailing the court-martial officer to the court. The convening order will specify that it is a summary court and appoint the summary courtmartial officer. Additionally, the convening order may designate where the court-martial will meet. If the convening authority derives his or her power from designation by SECNAV, this information is included in the order. Each convening order is assigned a court-martial convening order number. The convening authority personally signs the convening order showing his or her name, grade and title, including organization and unit.

The MCM, 1984 authorizes the convening authority to convene a summary court-martial by a notation on the charge sheet when signed. However, the better practice is to use a separate convening order for the summary court-martial. Appendix 6b of the MCM, contains a suggested format. We will have another look at convening orders later in this manual.

Summary Court-Martial Officer

A summary court-martial requires only one officer. As a jurisdictional prerequisite, this officer must be a commissioned officer on active duty and of the same armed force as the accused. (The Navy and Marine Corps are part of the same armed force.) Where practical, the officer's grade should not be below O-3. Age, education, experience, and judicial temperament are qualifications for the summary court- martial officer, as his or her performance will have a direct impact upon the morale and discipline of the command. When more than one commissioned officer is present within the command or unit, the convening authority may not serve as summary court officer. When the convening authority is the only commissioned officer in the unit, he or she may serve as summary court-martial officer. This fact should be noted in the convening order and should be attached to the record of trial. When such a situation exists, the better practice is to appoint a summary court officer from outside the command. Note that the summary court-martial officer does not have to be from the same command as the accused.

Remember, the summary court-martial officer assumes the burden of prosecution, defense, judge, and jury. He or she must thoroughly and impartially inquire into both sides of the matter assuring that the interests of both the government and the accused are safeguarded and that justice is done. While the summary court-martial officer may seek advice from a judge advocate or legal officer on questions of law, the officer may not seek advice from anyone on questions of fact, since he or she has a duty to make these determinations independently.

Jurisdictional Limitations: Persons

Article 20, UCMJ, and R.C.M. 1301(c) provide a summary court-martial the power (jurisdiction) to try only those enlisted person who consent to be tried. The right of an enlisted accused to refuse trial by a summary court-martial is absolute. A summary court-martial may not try commissioned officers, warrant officers, cadets, aviation cadets, midshipmen, and those not subject to the UCMJ.

Jurisdictional Limitations: Offenses

A summary court has the power to _{try all offenses} described in the UCMJ except those that require punishment beyond the maximum that can be imposed at a summary court-martial. For instance, a summary court cannot try capital offenses that involve the death penalty. Refer to R.C.M. 1004 for a discussion of capital offenses. A summary court-martial may dispose of any minor offense.