SUMMARY COURT-MARTIAL: TRIAL PROCEEDINGS

The actual trial procedure, while different from a special or general court-martial, is governed by the same principles and procedures. The major steps of the summary court-martial include the arraignment, motions, pleas, presentation of the evidence, and findings and sentence. Let's look at each of these steps individually.

Arraignment

The summary court-martial officer reads and shows the charges and specifications to the accused and, if necessary, explains them. The accused may waive the reading of the charges. The summary court-martial officer then asks the accused to plead to each charge and specification.

Motions

Before receiving pleas, the summary court-martial officer allows the accused to make motions to dismiss or for any other relief. When requested by the accused, the summary court-martial officer, in the interest of

justice, takes appropriate action on behalf of the accused.

Pleas

When a not-guilty plea is entered, the summary court-martial officer proceeds to trial. If the accused pleads guilty to any offense, the summary court officer determines the providence of the plea. If the summary court officer doubts that the accused's plea of guilty was not voluntarily and understandingly made, or if at any time during the trial any matter inconsistent with the plea of guilty arises, the summary court-martial officer enters a not-guilty plea on behalf of the accused. If the accused refuses to plead, the summary court-martial officer enters a not-guilty plea. The accused may change any plea at any time before findings are announced.

Presentation of Evidence

Witnesses for the prosecution are called first and examined under oath. The accused is permitted to crossexamine these witnesses. The summary court-martial officer can aid the accused in the cross-examination process. The witnesses for the accused are then called and examined under oath. The summary court-martial officer then evaluates the evidence to prove or disprove the accused's guilt or innocence or to establish extenuating circumstances.

Findings and Sentence

The summary court-martial officer announces the findings and sentence to the accused in open session. If the sentence includes confinement, the summary court officer advises the accused of the right to apply to the convening authority for deferment of the sentence to confinement. If the accused is found guilty, he or she is informed of the right to submit matters to the convening authority within 7 days.

SPECIAL COURT-MARTIAL

LEARNING OBJECTIVES: Describe the creation and composition of the special court-martial. Determine the qualification of members and the military judge. Describe the referral of charges and how charges can be modified. Explain the special court-martial procedures.

The special court-martial is the intermediate level court-martial created by the Uniform Code of Military Justice. The maximum penalties that an accused may receive at a special court-martial are generally greater

than those of a summary court-, but less than those of a general court-martial. The rights of an accused are also generally greater as the maximum penalties increase with each type of court-martial. The special court-martial is a court consisting of at least three members, a trial counsel, a defense counsel, and a military judge, The maximum punishment at a special court extends to a bad-conduct discharge, 6 months' confinement, forfeiture of two-thirds pay per month for 6 months, and reduction to paygrade E-1. This chapter will discuss the special court-martial in detail.

CREATION OF THE SPECIAL COURT-MARTIAL

Article 23, UCMJ and JAGMAN 0120b prescribe who has the power to convene (create) a special court-martial. As with the summary court-martial, the power to convene a special court-martial is nondelegable, and in no event can a subordinate exercise such authority.

The commander of a unit embarked on a naval vessel who is authorized to convene a special court-martial should refrain from exercising such authority and defer instead to the wishes of the ship's commander.

Before any case can be brought before a special court-martial, it must be convened. The creation of a special court-martial is accomplished by the written orders of the convening authority.

Basically, the order is under command letterhead, is dated and serialized, and is signed personally by the convening authority. The order specifies the names and ranks of all members detailed to serve on the court. Signature titles such as "Acting Commanding Officer" and "Executive Officer" should not be used on legal documents, regardless of the validity of such titles on other administrative correspondence. When a proper convening order is executed, a special court-martial is created and remains in existence until dissolved.

COMPOSITION OF THE SPECIAL COURT-MARTIAL

There are several configurations of a special court-martial, depending upon either the desires of the convening authority or the desires of the accused. The constitution of the court refers to the court's composition, that is, the personnel involved. The

composition of the types of special court-martial is discussed in the following paragraphs.

Three Members

One type of special court-martial consists of a minimum of three members and counsel, but no military judge. Such a special court-martial can try any case referred to it but cannot adjudge a sentence (in enlisted cases) of more than 6 months' confinement, forfeiture of 2/3 pay per month for 6 months, and reduction to paygrade E-1. So, in ordinary circumstances, a punitive discharge from service may not be adjudged. When a three-member type court-martial is used, the convening authority must include in the referral block on the charge sheet that a bad conduct discharge BBCD) is not an authorized punishment.

Military Judge and Members

Another type of special court-martial involves counsel, at least three members, and a military judge. The role of the members is similar to that of a civilian

jury. They determine guilt or innocence and impose sentence. The senior member is, in effect, the jury foreman, who presides during deliberations. The military judge functions like a civilian criminal court

judge. He or she resolves all legal questions that arise and directs the trial proceedings. This form of special court-martial is authorized to adjudge a punitive discharge and has become fairly standard in the naval service.

Military Judge Alone

The special court-martial consisting of a military judge alone is not created by a convening order, but by exercise of a statutory right of the accused. The accused has the right to request orally on the record or in writing, a trial by military judge alone (without members). Before choosing to be tried by judge alone, an accused is entitled to know who the judge will be. The trial counsel (prosecutor) may argue against a request for a judge-alone trial when presented. The judge rules on the request and, if the request is granted, the court members are dismissed for that case only. A court-martial so configured is authorized to impose a sentence extending to a punitive discharge.