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Military Law
Stetson University School of Law
Frankel, Ronald

Military Law
 
Class Notes:
 
Exam will be three hours. Probably around 60 multiple choice and 2 essays.
 
Purpose of military law- maintain good order and discipline.
 
Military law authorities:
·         Constitution Article I Sec. 8, Article II Sec. 10
 
Jurisdiction:
General Rule- If a member of the military commits an offense and it is a crime that can be tried under the UCMJ, the military has jurisdiction to try that case regardless of where the offense is committed, or whether the offense is committed against a civilian.
·         You must look at the status of the offender. The offender must be in the military, the crime does not have to be connected to the military anymore.
·         If the offense is committed off base against a civilian, the state or the military can try the service member with the crime. There are often agreements between military installations and state prosecutors regarding who will prosecute these kinds of cases. Typically, the military will try these kinds of cases unless the state prosecutor wants to try it for political reasons.
 
Dependants/Wives- the military does not have any jurisdiction to try wives or dependants who are living with the military member.
 
Status of Forces Agreements- agreements made by both countries when one country stations troops in the other country and one of the stationed troops commits a crime. Usually, under these agreements the host country will waive jurisdiction and relinquish jurisdiction to the country responsible for the troops. The host country may not always relinquish jurisdiction however.
 
Article 86- Absence without leave/failure to report for duty.
 
Article 15- Non-judicial punishment
 
Article 128- Charges
 
Convening Authority- A commander who has the authority to authorize and establish a court martial.
 
Panel- the equivalent of a jury. For a special court martial, the minimum is three members. For a general court martial, the minimum is 5 members.
 
Defense council and the prosecutors are in entirely different chains of command even though they are located on the same base.
 
Apprehension- military term for taking into custody.
 
Bail- there is no bail in the military.
 
Pretrial Restraint:
·         A commander has the power to order pretrial restraint (this is usually a commissioned officer 2nd Lt. or higher, but can be a warrant officer).
 
Types of Pretrial Restraint:
1.       Condition on liberty (generally a no contact order which basically means don’t bother the witnesses or talk to other people about the case).
2.       Arrest in quarters- generally used for officers. Obviously, since you are restricted to quarters, you are unable to perform your military duties.
3.       Restriction- restrict the suspect to a certain area such as the barracks, or the base. You can still perform military duties while on restriction.
4.       Pretrial Confinement- If you have committed an offense and you appear to be a flight risk, or a risk to others or yourself, pretrial confinement is used until the trial takes place.
·   In order to put someone in pretrial confinement:
·         A commander must have probable cause to believe the accused is guilty of the offense.
·         The accused must be believed to be a flight risk, a risk to themselves, or a risk to others.
·   Within 48 hours of initiating pretrial confinement, the accused must be brought before a magistrate, which is typically a JAG officer.
·   Within 72 hours, the commander must look at the case and determine whether there is enough probable cause to continue to retain the accused for trial.
·   Within 7 days, there must be a second review to determine if there is sufficient probable cause to continue to retain the accused for trial.
·   The military generally credits a convicted persons sentence for every day that they were held in pretrial confinement.
 
Military wanted individual caught by civilian auth

cannot give Article 15 hearings.
·         There is no double jeopardy with Article 15 hearings so technically, a service member could be given an Article 15 hearing and then tried in a court martial for the same offense. This generally does not happen however.
 
Summarized Article 15- only in the army. Can be held by any officer and are only applicable to enlisted members. They are not that damaging to your career and they usually do not transfer to different bases with you.
 
Appealing an Article 15
 
Article 32 Investigation- a case cannot go to a general court martial without undergoing a Article 32 investigation. An officer conducts this investigation to determine whether or not there is enough evidence to go to trial. The Article 32 officer then has the obligation to recommend what level of court martial will be pursued.
·         Article 32 investigations are extremely beneficial to the defense because the government basically does all of the discovery up front. Because of this, defense counsel can sit back and wait to see if the government will even be able to come up with enough evidence for a trial before they even enter a plea or affirmative defense.
·         There are usually verbatim records taken when testimony is given during the Article 32 investigation.
 
Court Martial Process:
1.       Preferral of charges.
2.       Forwarded to Summary Court Martial
3.       Possible Article 32 investigation.
4.       Forwarded to General Court Martial
5.       Referral to Court Martial
 
Three pleas that you can make in a court martial: