PREFERRAL AND REFERRAL OF CHARGES

In this section, we will focus on the mechanism for properly bringing a case to trial before a summary court-martial. Referral is the basic process by which you send a case to a particular type of court-martial. Preferral is when charges are formally made.

Preliminary Inquiry

Every court-martial case begins with a complaint by someone that a person subject to the UCMJ has committed an offense that results in the discovery of misconduct. The officer exercising immediate non-judicial punishment authority over the accused has the duty to make, or cause to be made, an inquiry into the truth of the complaint or apparent wrongdoing.

Preferral of Charges

Charges are formally made against an accused when signed and sworn to by a person subject to the UCMJ. This procedure is known as preferral of charges. You prefer charges by executing the appropriate portions of the charge sheet, DD Form 458. There are several steps involved in this preferral process. They are:

1. Personal data. Complete Block I of page 1 of the charge sheet first. You can find the information relating to personal data in the pertinent portions of the accused's service record.

2. The charges. Next, you complete Block II of page 1 of the charge sheet indicating the precise misconduct involved in the case. Each punitive article found in Part IV, MCM, 1984 contains sample specifications. If the charges are so numerous that they will not all fit in Block II, place them on a separate piece of paper as Attachment A.

3. Accuser. The accuser is a person subject to the UCMJ who signs Item 11 in Block III at the bottom of page 1 of the charge sheet. The accuser swears to the truth of the charges and has the affidavit executed before an officer authorized to administer oaths. This step is important, as an accused has a right to refuse trial on unsworn charges.

4. Oath. The oath must be administered to the accuser and the affidavit must show that it was executed by a person with proper authority. As authorized by Article 136, UCMJ, judge advocates, staff judge advocates, legal officers, law specialists, summary court-martial officers, adjutants, Marine Corps and Navy commanding officers, among others, may administer oaths to the accuser. Also authorized to administer oaths are officers certified by the Judge Advocate General of the Navy as counsel under Article 27, UCMJ, all officers in paygrade O-4 and above, executive officers, and administrative officers of Marine Corps aircraft squadrons. Often the legal officer will administer the oath regardless of who conducted the preliminary inquiry. When the charges are signed and sworn to they are "preferred" against the accused.

Informing the Accused

Once formal charges have been signed and sworn to, the preferral process is complete. The preferred charges are then receipted for by the officer exercising summary court-martial jurisdiction over the accused. This officer or his or her designate should formally receipt for the preferred charges by completing the receipt section, Block IV, of the charge sheet. The purpose of this receipt certification is to stop the statute of limitations for the offense charged.

The next step is to inform the accused of the charges against him or her. The purpose of this step is to provide the accused with reasonable notice of an impending criminal prosecution. This action complies with standards of due process of law. The immediate commander is required to inform the accused of the following elements as soon as practicable:

1. the charges preferred against him or her;

2. the name of the person who preferred the charges; and,

3. the name of the person who ordered the charges to be preferred.

The person who gives notice to the accused executes Item 12 at the top of page 2 of the charge sheet. If not the immediate commander of the accused, the person signing on the signature line should state their rank, component, and authority. The law does not require a formal hearing to provide notice to the accused, but the charge sheet must show that notice was given.

When the accused is absent without leave at the time charges are sworn, it is permissible and proper to execute the receipt certification even though the accused cannot be advised of the existence of the charges. In such cases, attach a statement to the case file indicating the reason for the lack of notice. When the accused returns to military control, notice should then be given.

Referral of Charges

Once the charge sheet and supporting materials are presented to the summary court-martial convening authority and a decision made to refer the case to a summary court, it must be sent to one of the summary court-martials previously convened. The referral is executed personally by the convening authority. It explicitly details the type of court (summary, special or general) and the specific court to which the case is being referred. This procedure is concluded by completing Item 14, Block V, on page 2 of the charge sheet.

In addition, the referral on page 2 of the charge sheet should show any particular instructions applicable to the case. These instructions could include statements such as, "confinement is not an authorized punishment in this case," or any other instructions desired by the convening authority, If no instructions apply to the particular case, the referral should so indicate by use of the word "none" in the appropriate blank. Once the referral is properly executed, the case is "referred" to trial. The case file should then be forwarded to the proper summary court-martial officer for further action.

PRETRIAL PREPARATION

After charges are referred to trial by a summary court, all case materials must be forwarded to the summary court-martial officer. He or she is then responsible for preparing the case for trial.

Preliminary Preparation

Upon receipt of the charges and accompanying papers, the summary court-martial officer begins preparation for trial. The charge sheet is carefully examined, and all obvious administrative, clerical, and typographical errors are corrected. The summary court-martial officer must initial each correction made on the charge sheet. If there are so many errors as to require preparation of a new charge sheet, re-swearing of the charges and re-referral are required. If the summary court officer changes an existing specification to include any new person, offense, or matter not fairly included in the original specification, again, the new specification must be re-sworn and re-referred. The summary court-martial officer continues with his or her examination of the charge sheet to determine the correctness and completeness of the information on pages 1 and 2.

Pretrial Conference with the Accused

After initial review of the court-martial file, the summary court-martial officer meets with the accused in a pretrial conference. We will discuss the accused's right to counsel later in this chapter. If the accused elects representation by counsel, all dealings with the accused is through his or her counsel. Thus, the accused's counsel, if any, should be invited to attend the pretrial conference. At the pretrial conference, the summary court-martial officer follows the suggested guide found in appendix 9, MCM, 1984, and documents the fact that all applicable rights were explained to the accused.

PURPOSE.- The purpose of the pretrial conference is to provide the accused with information on the nature of the court-martial, the procedure to be used, and his or her rights with respect to that procedure. No attempt should be made by the summary court-martial officer to interrogate the accused or otherwise discuss the merits of the charges. The proper time to deal with the accusations against the accused is at trial. The summary court-martial officer should provide a meaningful and thorough briefing. It is most important that the accused fully understand the court-martial process and his or her rights pertaining to that process.

ADVICE TO ACCUSED-RIGHTS.- The summary court-martial officer should advise the accused of the following: 

. The general nature of the charges. 

. The fact that the charges have been referred to a summary court-martial for trial and the date of referral. 

. The identity of the convening authority, 

l The name of the accuser. 

. The names of witnesses who may be called to testify and any documents or physical evidence that the summary court-martial officer expects to introduce. 

. The accused's right to inspect the allied papers and personnel records immediately available. 

. That during the trial the summary court officer will not consider any matters, including statements previously made by the accused, unless they are admitted in accordance with the military rules of evidence.

. The accused's right to plead not guilty or guilty.

. The accused's right to cross-examine witnesses and have the summary court-martial officer cross-examine witnesses on behalf of the accused. 

l The accused's right to call witnesses and produce evidence with the assistance of the summary court-martial officer, if necessary. 

. The accused's right to testify on the merits, or to remain silent with the assurance that no adverse inference will be drawn by the summary court-martial officer for such silence. 

. If any findings of guilt are announced, the accused's right to remain silent, to make an unsworn statement, oral or written or both, to testify, and to introduce evidence in extenuation and mitigation. 

. The accused's right to object to trial by summary court-martial. 

l The maximum sentence that the summary courtmartial officer may adjudge if the accused is found guilty of the offense(s) alleged.

Advice to accused should include the following maximum punishments that can be awarded at a summary court-martial.