Pre-sentencing Procedure

After findings of guilty have been announced, the prosecution and defense may present matters to aid the court-martial in determining an appropriate sentence. Such matters are ordinarily presented in the following sequence:

1. Service record data relating to the accused taken from the charge sheet

2. Personal data relating to prior service of the accused taken from the service record

3. Evidence of prior convictions, military or civilian

4. Evidence of rehabilitative potential

Extenuation and Mitigation

The defense may present matters in rebuttal of any material presented by the prosecution and may present matters in extenuation and mitigation. Matters in extenuation of an offense explains the circumstances of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse. Matters in mitigation of an offense is introduced to lessen the punishment adjudged by the court-martial, or to furnish grounds for clemency.

The accused may testify, make an unsworn statement, both in extenuation or mitigation, or rebut matters presented by the prosecution. The accused must limit such testimony or statements to those specifications to which the accused has been found guilty.

Arguments on Sentence

After introduction of matters relating to the sentencing, counsel for the prosecution and defense may argue for an appropriate sentence. Again, in a members trial, the military judge will instruct the members on sentencing. As with findings, two-thirds of the members must agree on a particular sentence. In a members trial, the president of the court will announce sentence; otherwise the military judge announces it. Immediately after sentencing, the military judge informs the accused of post-trial and appellate rights.

Adjournment

The military judge adjourns the court-martial at the end of a trial of an accused or proceeds to try other cases referred to that court-martial.

Clemency

After trial, any or all court members and the military judge may recommend that the convening authority exercise clemency to reduce the sentence, notwithstanding their vote on the sentence at trial.

THE GENERAL COURT-MARTIAL

LEARNING OBJECTIVES: Describe the pretrial investigation and identify the parties involved and explain the duties of each. Explain general court-martial proceedings.

The general court-martial is the highest court in the military justice system. A general court may impose the greatest penalties provided by military law. The general court-martial is composed of a minimum of five members, a military judge, and lawyers for the government and the accused. In some cases, the court is composed of a military judge and counsel. The general court-martial is created by the order of a flag or general officer in much the same manner as the special court-martial is created by subordinate commanders. Before trial by general court-martial may lawfully occur, a formal investigation of the alleged offenses must be conducted and a report forwarded to the general court-martial convening authority. The pretrial ^{investigation,} often referred to as an Article 32 investigation, is normally convened by a summary court-martial convening authority. The next section

will discuss the legal requisites of the pretrial investigation,

THE PRETRIAL INVESTIGATION

The formal pretrial investigation (Article 32, UCMJ) is the military equivalent of the grand jury proceeding in a civilian court. The pretrial investigation will formally inquire into the allegations contained in the charge sheet; it will secure information on how to dispose of the case, and aid the accused in defending against the evidence. Basically, this investigation is protection for the accused, but it is also useful for the prosecutor. The pretrial investigation will enable the prosecutor to test the case for its strength and determine whether to continue with the case or seek dismissal if too frail or groundless.

Authority to Direct

The pretrial investigation may be directed by one authorized by law to convene a summary or higher level court-martial. As is true of all other forms of convening authority, the power to order the Article 32, UCMJ pretrial investigation resides in the office of the commander.

Mechanics of Convening

When a summary court or higher convening authority receives charges against an accused that are serious enough to warrant trial by a general court, the convening authority directs a pretrial investigation, Written orders of the convening authority assign personnel to participate in the investigation. At the time the investigation is ordered, the charge sheet will have been completed up to, but not including, the Referral block on page 2. Unlike courts-martial, pretrial investigations are directed as required, and standing orders for such proceedings are inappropriate. And there is no separate referral of a case to a pretrial investigation, since the order creating the investigation amounts to a referral of the case. The original appointing order is forwarded to the investigating officer along with the charge sheet, allied papers, and a blank investigating officer's report form (DD Form 457).

Investigating Officer

The pretrial investigation is a formal one-officer investigation into alleged criminal misconduct. The investigating officer must be a commissioned officer who should be a major or lieutenant commander or above, or an officer with legal training. The advantages of appointing a judge advocate (when available) to act as the investigating officer are substantial, especially in view of the increasingly complex nature of the military judicial process. An accuser, prospective military judge, or prospective trial or defense counsel for the same case may not act as investigating officer. Further, the investigating officer must be impartial and cannot previously have had a role in inquiring into the offenses involved, such as the provost marshall or public affairs officer. But, prior knowledge of the facts alone will not disqualify a prospective investigating officer. If the investigating officer is biased by such knowledge, however, then he or she is not the impartial investigator required by law. The law requires an investigating officer who is mature, fair, and impartial. That such an officer be appointed is the responsibility of the convening authority. If an investigating officer who is not a lawyer seeks advice regarding the investigation, that advice should not be requested from one who is likely to prosecute the case.

Counsel for the Government

While the pretrial investigation need not be an adversarial proceeding, current practice favors having the convening authority detail a lawyer to represent the interests of the government, especially when the investigating officer is not a lawyer. The assignment of a counsel for the government does not lessen the obligation of the investigating officer to investigate the alleged offenses thoroughly and impartially. As a practical matter, however, the presence of the lawyers representing the government and the accused do make the pretrial investigation an adversarial proceeding. During the investigation, the counsel for the government will present evidence to support allegations contained on the charge sheet, much like a prosecutor at trial.

Defense Counsel

An accused has extensive rights to counsel at the pretrial investigation, as well as at the general court-martial. More specifically, an accused may be represented by civilian counsel and by a detailed military lawyer. The civilian counsel must be provided by the accused at no expense to the government. The detailed military lawyer must be certified in accordance with Article 27(b), UCMJ, and can be a military lawyer of his or her own choice at no cost if such counsel is reasonably available. Detailed defense counsel at a pretrial investigation must be a certified lawyer and be designated by the appointing order. Individual counsel, military or civilian, is normally 

. not detailed on the appointing order. An accused is not entitled to more than one military counsel in the same case,

Reporter

There is no requirement that a record of the pretrial investigation proceedings be made other than the completion of the investigating officer's report. Accordingly, a reporter need not be detailed. It is common practice, however, to assign a reporter to

prepare a verbatim record, particularly in complex cases. When such a record is desired, the convening authority may detail a reporter, but this assignment is usually made orally and is not part of the appointing order.

Appointing Order

The order directing a pretrial investigation may be drafted in any acceptable form so long as an investigation is ordered and an investigating officer and counsel are detailed. A suggested format is shown in figure 5-2.

Figure 5-2.-Sample Appointing Order for Article 32 Pretrial Investigation.