Block VII - PreTrial - Second half Flashcards
Explain the contents required in preparing an AF IMT 1168, witness statement. (W)
Part I – Statement Information
Part II – Personal Information
Part III – Acknowledgement of Offenses
Part IV – Statement
Part V – Oath/Signature
Part VI - Instructions for Continuation Page(s)
What is/in the Statement Information on the AF IMT 1168?
Date, time, location, and unit regarding the statement
What is/in the Personal Identification on the AF IMT 1168?
All identifiable information of the person making the statement.
If a dependent, the sponsor’s information is included as well
What is/in the Acknowledgement of Offenses and 5th Amendment/Article 31 Rights Advisement on the AF IMT 1168?
This section only applies if statement being taken is from someone suspected of committing an offense.
The article they are suspected of violating goes in first section, then the person advising them of their rights and how they ID’d themselves to the suspect.
The remainder of the options outlines the 5th Amendment and Article 31 rights, along with the suspect’s options
What is/in the Statement section on the AF IMT 1168?
The witness, suspect, or complainant types or handwrites their statement or what they witnessed.
This is the core of the 1168
What is/in the Oath/Signature section on the AF IMT 1168?
Signatures of the person making the statement, a witness or the interviewer and the person administering the oath
What is/in the Instructions for Continuation Page(s) section on the AF IMT 1168?
If there are additional pages, this is where the total number of pages are annotated.
What is the purpose of an interview?
Questioning a person who has, or is believed to have, information of official interest to the interviewer
Gain information to establish facts
Develop background information
Identify key phases of a witness interview. (W)
Introduction, Rapport, Questioning, Summary, Conclusion.
Pg 84 in Study Guide
What are some considerations of interviewing witnesses or victim’s?
Members of opposite sex:
Make sure someone of the interviewee’s sex is in the room with you (especially if this is a SA case)
Juvenile (children):
Always contact the parents/legal guardians to schedule interview, and ensure there’s multiple legal office personnel present and take the members of opposite sex into consideration
Victims:
VIC can request TC, VIC’s SVC, or a Victim Advocate (VA) at interviews
If VIC req’s TC present w/ DC, TC explains there is no att-client relationship
At DC interviews of VIC that TC attends, there must be additional person present
State the purpose of the Victim and Witness Assistance Program (VWAP). (W)
Provides guidance for treatment of victims/witnesses of offenses under UCMJ and VICs and witnesses of offenses under the jurisdiction of local, state, and other federal, or foreign authorities during those stages of the criminal justice process conducted primarily by the AF
What is TJAG’s responsibility as far as VWAP? (W)
TJAG is Component Responsible Official (CRO)
coordinating, implementing, and managing the Air Force VWAP.
Who is the Local Responsible Official (LRO) at each installation, and who can this role be delegated to?
The installation CC is the LRO - can delegate to SJA in writing
The SJA can further delegate to VWAP coordinator:
Can the VWAP coordinator also serve as a victim liaison?
Yes!
Recognize the roles and responsibilities within the Victim and Witness Assistance Program (VWAP). (W)
TJAG – Component Responsible Official (CRO):
Coordinates, implements, and manages AF VWAP
Installation Commander (Wing CC) - delegated to SJA - Local Responsible Official (LRO):
May delegate duties to VWAP Coordinator
Identify victims/witnesses
Appoint victim liaison
Inform victims where receive emergency medical & social services
Inform eligible victims of SVC
Inform victims of any restitution or relief
Inform victims of transitional compensation benefits
Inform victims of public/private counseling, treatment & support programs
Assist victim contacting agencies for service and relief
Inform victim concerning protection from accused
VWAP coordinator:
Delegated LRO responsibilities from SJA
Implements and manage the installation program
Including training program and local agency training accomplishment
Ensures the accomplishment of required training by all local agencies
May also be a victim liaison
Victim liaison – appointed by LRO:
Advises victim of rights under:
Victims’ Rights and Restitution Act (VRRA)
Victims of Crime Act (VOCA) 1984
Keeps victim informed during military justice process stages
Notify & Consult w/victim prior to
State basic facts about assisting victims with expedited transfer request. (W)
Falls under purview of SAPR or Family Advocacy Program but if unavail
VWAP liaison responsible and authorized to assist victim with request
Service members are the victim of stalking, indecent view, visual recording or broadcastig, domestic violence or service member’s dependent is sexually assaulted by another service member they are not related to
Who advises victim of rights under the various acts and keeps them informed about MJ process stages?
Victim liaison – appointed by LRO:
Advises victim of rights under
Victims’ Rights and Restitution Act (VRRA)
Victims of Crime Act (VOCA) 1984
Keeps victim informed during military justice process stages
Notify & Consult w/victim prior to
Identify who provides required victim notifications within the Victim and Witness Assistance Program (VWAP). (W)
SF at certain points.
LRO, SJA, or victim liaison will notify & consult victim prior to:
Decisions not to prefer charges
Dismissal of charges
Pre-trial restraint or confinement
Entering a PTA (Pre-trial Agreement); to include PTA terms
VIC’s feelings are taken into account
What kind of services are available for victims and or witnesses.
Base - AFRC, Transition Assistance
State
Federal
Special Victims Counsel (SVC)
Who is a victim?
anyone who has suffered direct physical, emotional, or pecuniary (money) harm as a result of a crime
Identify the different classification of victims and their rights under Article 6b. (W)
Victims of sex offenses - Article 120 (Rape, Sexual Assault, Sexual Contact, Abusive Sexual Contact), Article 125, and attempts under Article 80
Article 6b
Right to: protection from accused, reasonable, accurate, and timely notice, receive copy of the recording of Article 32, preliminary hearing, to be excluded from any public hearing or proceeding mentioned above, be heard at: 7-day review f/ PTC, sentencing hearing, vacation hearings, mil dept clemency, parole board.
Right to: confer w/counsel representing the government, receive restitution , proceedings free from unreasonable delay, be treated w/fairness, respect, dignity & privacy
Right to submit written statement to the convening authority if accused found guilty of offense tried by C-M petition for Article 30a, hearing before military judge – for Article 6b matters or relief on investigative subpoena
Right to be interviewed by DC in the presence of SVC, TC, or Victim Advocate (VA) submit supplemental materials for consideration by PHO & convening authority w/in 24 hrs after Article 32 hearing closed, receive copy of the recording of all open sessions of C-M, receive copy of ROT and EOJ, and any action taken by convening authority
Identify the appropriate forms to provide to Victims and Witnesses. (W)
DD Form 2701
DD Form 2702
DD Form 2703
DD Form 2704
DD Form 2705
What is the DD Form 2701?
Initial Information for Victims and Witnesses of a Crime
For when crime is first committed and they are ID’d as VIC/Witness.
Law enforcement or investigative personnel provide these
What is the DD Form 2702?
Court-Martial Information for Victim’s and Witnesses of a Crime
Provided to VIC/witness before trial (generally in anticipation of preferral of charges)
What is the DD Form 2703?
Post-trial Information for Victims and Witnesses of Crime
Provided to VIC/witnesses at conclusion of trial
What is the DD Form 2704?
Victim/Witness Certification and Election Concerning Prisoner Status
Normal as part of post-trial work.
Used for VIC or Witness to make elections to or not to be notified of any change in status of the ACC if the ACC receives confinement as part of their sentence
What is the DD Form 2705?
Victim/Witness Notification of Prisoner Status
Used for notification purposes if a VIC or Witnesses elected to be notified of the ACC’d confinement status on DD Form 2704
State basic facts about notifying eligible victims of Special Victim Capability services. (W)
Special Victims:
Arise from cases being charged w/Article 120, 120a, 120b, 120c, 125, or 80 (attempts)
Same offenses, but victims are minor children
Domestic violence, rape, sexual assault, any other unwanted sexual contact that is aggravated, abusive or wrongful, and attempts.
Victims additional rights:
Eligible victims right to consult SVC per 10 U.S.C. § 1044e
Right to have victim’s counsel (including SVC) provided w/ reasonable, accurate, and timely notice of proceedings under Article 6b
Non-participating victims - CC and SJAs should refer to AFI 90-6001, Sexual Assault Prevention and Response (SAPR) Program
Identify the authority that determines eligibility under an exception to policy request for Special Victims Services. (W)
The Chief, Victims’ Counsel Division, HQ/AF (CLSV) has final authority to determine eligibility on a case-by-case basis consistent
What is the exception to policy memorandum for SVC eligibility called?
Extraordinary Circumstances Request (ECR)
Requested through HQ/AF (CLSV)
State basic facts about obtaining sex assault victim preference on jurisdiction. (W)
Victim can submit their inputs on the case being prosecuted by CM or in a civil court
SJA makes request in writing to VIC →
VIC may respond in writing, telephone, video teleconference, or in person →
SPCMCA considers the VICs views →
Cases under civ jurisdiction, the CA through the SJA ensures the civ auth is notified of VIC preference →
SJA ensures VIC is notified of the civ authorities decision (civ will or will not prosecute).
SJA ensures GCMCA receives any statements from VIC if case is forwarded to GCMCA for disposition.
State simple facts about processing pre-trial agreements (PTA). (W)
used for cases in which all offenses occurred prior to 1 January 2019 where the ACC, DC and the CA agree to prior to trial to fulfill terms or conditions
Procedures:
Negotiation - initiated by ACC, DC, TC, SJA, or CA
Formal Submission - DC submits formal written offer
Acceptance by convening authority - CA can accept or reject
Victim Consultation - Give VIC chance to submit opinion/thoughts on PTA before CA makes decision
Signature Parties - ACC, DC, CA
All agreed upon sentence limitations are placed in Appendix A
MJ is aware of PTA, but not the sentencing limitations
What is the purpose of a PTA (pre-trial agreement)?
Purpose - used for cases in which all offenses occurred prior to 1 January 2019 where the accused and the convening authority agree to prior to trial to fulfill terms or conditions.
Agreed to by convening authority and accused in return for the accused’s guilty plea.
Describe what happens when the accused gets to trial and pleads guilty with a pre-trial agreement
The MJ must accept the guilty plea after the CARE inquiry.
The MJ, during the proceedings, would not know what the limitations inside of the PTA
After the CARE inquiry and accepting the guilty plea, the MJ will provide sentence(s) and then refer to the PTA for maximums.
State simple facts about processing plea agreements. (W)
- Negotiation
- Initiated by CA, SJA, DC, ACC, TC
- Formal submission
- Submitted by the DC on behalf of ACC, signed by both.
- Acceptance by convening authority
- Accept, Reject or counter-offer
- Signed by Convening Authority and ACC
- Victim Consultation
- Consider VICTIM input
Recall if a MJ and the members are informed of an existing plea agreement?
Nondisclosure of existence of a plea agreement
MJ is aware of the entire plea agreement
Members are not informed of the existence of a plea agreement
What are the types of immunity?
Transactional: Rarely granted
Protects witness from prosecution for the offense(s) involved
Testimonial: Most common
Does not bar the prosecution of the offenses the member is testifying about. Protects the witness against the government’s use of their immunized testimony in a prosecution of the witness.
State basic facts about drafting an immunity request. (W)
Focus on the scope of the immunity request
Ensure the language in the request creates the scope of the immunity (the “what” matters)
Must state which type of immunity is being granted
Determine whether or not authorization from the DoJ is required
Must state that the grant of immunity takes effect on the day the witness receives the letter and the letter must be acknowledged in writing by the witness
Signed by the approval authority
Who is the approval authority for immunity requests for witnesses subject to the UCMJ?
GCMCA, who can delegate to SPCMCA
If SPCMCA is about to grant immunity, the SPCMCA SJA must consult with the GCM SJA
Who is the approval for immunity requests for witnesses not subject to the UCMJ?
Department of Justice either disapproves or authorizes GCMCA to offer witness immunity
Routed through GCMCA to JAJM then to DoJ
Identify basic facts regarding stipulations of fact. (W)
Purpose:
written or oral statement used to cut down on what facts need to be agreed during court, saves time and money
An agreement by the parties as to the:
Truth of any fact & content of a document
Who are the parties to a stipulation of fact AND stipulations of expected testimony?
TC, DC, and Accused
Identify basic facts regarding stipulations of expected testimony. (W)
Purpose:
written statement used when a potential witness is unavailable during the C-M
An agreement by the parties as to:
Information is the expected testimony of a witness
Stipulation as to the content of documents or expected testimony is an agreement as to the contents or statement, but not that either is factual
Once the parties agree to a stipulation of fact, it is what?
Binding to the court
Do member’s of the court examine stipulations of fact?
Yes
Stipulations of fact are marked exhibits and are provided to members at the court.
This is a marked exhibit
Are stipulations of expected testimony provided to the member panel?
Members have the expected testimony read to them but DO NOT get to inspect it.
It is still a marked document/exhibit
Describe proper procedures for preparing discovery requests. (W)
Request and Response completed in writing via memorandum format.
Provided by SJA & TC as soon as practicable
Purpose:
Equal opportunity by the TC, DC, and the court to obtain witnesses and other evidence
Helps to ensure that C-M process remains fair & free from unnecessary delay during pretrial preparation
State basic facts regarding rules for responding to discovery requests for TC. (W)
Disclosure by the TC
Automatically:
Allied papers (Charge sheet, 1st indorsement, evidence)
Evidence favorable to defense
Names/Contact info of witnesses used to rebut defense of alibi, lack of mental responsibility, or innocent ingestion
Names/Contact info for findings witnesses
Evidence of prior convictions
Upon request:
Documents and other tangible evidence
Info to be offered at sentencing
Names and addresses of sentencing witnesses
State basic facts regarding rules for responding to discovery requests for DC. (W)
Automatically:
Names and addresses of witnesses
Sworn/Signed statements of witnesses
Notice of certain defenses
Upon request:
Documents and other tangible evidence
Reports of examination, tests or experiments
Names and contact info for sentencing witnesses
Discuss Failure to comply in regards to discovery.
MJ may order the party to permit discovery
MJ may grant a continuance
MJ may prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed
MJ may enter such other order as is just under the circumstances
TC must inform DC if individual is testifying under PTA or PA
TC must let parties know of confidential informant (CI) existing, not their identity.
Recall basic guidelines for providing Special Victims Counsel information or evidence in accordance with the Privacy Act. (W)
SJA may release records that are minimally required to accomplish the SVC’s intended use
Requests for records should be properly addressed as “official use” requests under the Privacy Act (PA) & Freedom of Information Act (FOIA)
State basic facts regarding evidence strategy. (W)
Purpose:
the art of devising or employing evidence towards the goal of successful prosecution
Basic Questions:
What evidence should be presented?
What order should evidence be presented?
What does the attorney need from paralegals?
State the importance of assisting trial counsel in developing an evidence strategy. (W)
Paralegals are key to marking evidence to ensure TC is prepared for trial.
Identify basic rules for preparing photographic evidence. (W)
Color & 5x7
Original includes negative and print therefrom
Printouts or other output readable by sight that reflects data accurately is an original
Identify proper methods and identification markings for prosecution, defense, appellate and court exhibits. (W)
Counsel or CR may pre-mark pro/def exh only
Number each side of a 2 sided doc
Do not use stick on labels to mark exh
Do not mark on exh that will be returned to the owner
Marked in lower right hand corner of each pg
More than one pg, stamp Page ___ of ___
Marked indicating offered, admitted and rejected
EX: PROSECUTION EXHIBIT _____ FOR ID
OFFERED______
PAGE ADMITTED/REJECTED
Who is responsible for ensuring ALL exhibits offered for identification/admission are properly marked?
Court reporter
What types of numbering systems are used for the types of exhibits?
(i.e. Prosecution, Defense, Appellate, and Court)
Prosecution exhibits– Numerically
Defense exhibits – Alphabetically
Appellate exhibits– Roman Numerals
Court exhibits – Arabic Numbers
Identify courtroom set-up procedures. (W)
Neat & Clean, professional image
Arrange furniture to reflect C-M set-up
Prepare court reporting equipment
Create seating chart and name cards for trial participants
Ensure provided materials are available and placed
What is the order of panel members?
President seated in front row in the middle
Next highest ranking is to the presidents right
Third highest ranking is to the president’s left, etc
Identify the purpose of Article 39(a) Sessions. (W)
Used to clear up matters which might be prejudicial to accused if heard by members
Members not in courtroom
Recall when and how arraignment occurs within a trial by court-martial. (W)
Happens during 39(a)
ACC is read their rights ->
Charges read for record, unless waived by ACC ->
ACC called upon to plea ->
Arraignment complete
Entry of pleas is not part of the arraignment
State the basic facts about motions in Air Force trial practice. (W)
Oral or written applications to MJ for a particular relief
Examples:
Suppress evidence, continuance, dismiss charge(s) and specification(s)
State the purpose of a guilty plea (CARE) inquiry. (W)
To ensure the accused knows what they are pleading guilty to and why they are guilty.
Identify when and why a guilty plea (CARE) inquiry is required. (W)
MJ will, upon a plea of guilty, ensure that the accused is fully aware of the government’s burden of proof and that the accused is pleading guilty of their own free will and truly believe that they are guilty of the offense charged.
State the purpose of voir dire. (W)
To reveal any bias, prejudice, or prior knowledge of the case that may prevent a member from being impartial
Obtain information for the intelligent exercise of challenges
Not opportunity to present factual matters of the case
When can the TC and DC ask the panel members open ended questions?
During individual voir dire
Identify type and quantity of challenges against panel members. (W)
For Cause Challenge:
Based on valid reasons to excuse mbr
TC and DC have unlimited challenges f/ cause
Used to excuse mbrs who may be prejudicial to the gov or def case based on answers given during Voir Dire
The MJ may be challenged for cause but occurs during the Pre-Assembly Article 39(a) session
Peremptory:
Excusal of a member without specified reason
Each party is entitled to one peremptory challenge
Identify the proper authority to rule on challenges against panel members. (W)
The military judge rules on all challenges, including challenges against the military judge
Describe the process for seating members between for cause challenge and peremptory
Numbers assigned if there’s still more than the fixed numbers
Members are seated in order from lowest to highest number
If acc requests 1/3 e →
GCM: seat 3 lowest-numbered e’s first
Ex: If there were 4 e’s left still, numbers 1, 3, 5, 8 – you would seat number 1, 3, & 5. These go on to peremptory challenge.
If one of those three got cut during peremptory challenge, number 8 is the backup.
Judge has random number generator and performs this task.
SPCM: seat 2 lowest-numbered e’s first
Outline the sequence of a court-martial during the findings phase of the trial. (W)
Article 39(a) session - TC/DC discuss instructions w/ MJ & Findings Worksheet
Court reopens with mbrs present →
Closing arguments : TC argues → DC argues → TC rebuts – at MJ’s discretion →
MJ instructs mbrs on findings/deliberations & Mbrs released f/ deliberations:
Unanimous vote of guilty for mandatory death penalty cases & 3/4 vote for all other guilty convictions →
C-M reconvenes with mbr’s verdict & President announces findings
Found Not Guilty → Court adjourned
Found Guilty → Proceed to sentencing
Describe contents and purpose of findings worksheets. (W)
Purpose: Assist mbrs during deliberation in properly formatting CM findings as req’d by MCM
Tailored based on specific case
Findings options:
Specification(s): Guilty, Guilty w/ exceptions/substitutions for a specification, Not guilty but guilty of a Lesser Included Offense (LIO), Not guilty, Not guilty by reason of lack of mental responsibility
Charge(s): Guilty, Not guilty, but guilty of another charge, Not guilty, Not guilty by reason of lack of mental responsibility
Outline the sequence of a court-martial during the sentencing phase of the trial. (W)
TC presents matters in sentencing case →
VIC presents sworn/unsworn statement →
DC presents matters in extenuation/ mitigation →
Article 39(a) - instruc’s on sentencing and Sentencing Worksheet
Court reopens w/ mbrs →
Court gives general instruc’s →
TC/DC give sentencing arguments →
MJ instructs mbrs on sentencing →
Mbrs deliberate: Unanimous vote f/ death, 3/4 for other sentences →
MJ announces sentence & MJ releases members →
MJ advises accused of post-trial and appellate rights →
Court adjourned
Describe contents and purpose of sentencing worksheets. (W)
Used to put sentence in proper form
Utilize the MJ Benchbook (DA Pamphlet 27-9)
Tailored for specific case (maximums based on the CM)
Discuss the date of which old or new rules apply?
If All offenses pre-date 1 Jan 2019 = Old Rules
If All offenses after 1 Jan 2019 = New Rules
What happens if there’s a mixture (straddling) before and after 1 Jan 2019?
- RCM 902A(a)(1)-(2) - CA may refer the charges to either
- A single CM where the Old Rules apply to all offenses unless the accused makes an election to have the new rules apply (RCM 902A(b));
- This “election” for New Rules before arraignment (RCM 902(A)(b))
- Separate CMs for the offenses (one for offenses prior to 1 Jan 2019 and one for offenses after 1 Jan 2019)
- A single CM where the Old Rules apply to all offenses unless the accused makes an election to have the new rules apply (RCM 902A(b));
State the content required for a status of disciplinary briefing. (W)
Base legal office creates SOD slides
Items: ROT for CM in the quarter
Info regarding NJP acts c/w + processing time
Info on invol discharge cases + processing time
1/ year, rates per thousand overall and by O/E, grade, gender, and race for CM and NJP
Special interest items ID’d by the Wg/CC (ARIs, drug offenses, unlawful command influence)
What is/in the Oath/Signature section on the AF IMT 1168, Statement of Suspect/Witness/Complainant?
Signatures of the person making the statement, a witness or the interviewer and the person administering the oath
What form is used for an ACC to request trial by MJA?
DD Form 1722, Request for Trial before Military Judge Alone
Submitted during Pre-assembly Article 39(a) session
