Military Justice Flashcards
What AFI covers G-series orders?
AFI 51-509
What does it mean to assume command?
Someone is going to take the place of the permanent (or appointed) unit commander.
Can be permanent or temporary.
Ensures there is no break in the command of the unit.
What does it mean to be appointed to command?
When someone takes primary control over the unit.
Typically happens during PCSes.
Can be permanent or temporary.
Must be equal/senior in grade, not in rank to other officers.
Who can assume command within the unit?
The senior ranking person.
What AF form is used to complete a request/authorization for command?
AF Form 35
What is the APE acronym for command authority?
Officer may command an organization to which they are:
(A)ssigned/attached
(P)resent for duty
(E)lible/authorized to command
What are the requirements for someone to be eligible to command an organization?
Must be equal/senior in grade not rank.
For G-series, rank is determined by TIS not TIG.
While on title 10 U.S.C. orders you are of ___________ status?
Federal
When are you subjected to the code of the UCMJ as a reservist?
While on title 10 orders.
Describe some characteristics of a category B reservist.
- Also known as IMAs.
- Augment active duty units.
- Work individual scheduled hours when they are needed.
- Have drill days and annual trainings.
Who falls under Title 32 U.S.C. jurisdiction?
ANG members. ANG are not subject to the UCMJ unless they are placed on title 10 orders.
Who has the authority to recall an ARC member to active duty?
The GCMCA at the station where the member is assigned or attached.
When must you request SECAF approval to recall someone to active duty?
If the individual is an ARC member and the offense could possibly place them in confinement or if their liberty will be restricted.
What is a search authorization?
Permission by military authority to search a person/area for specified property and seize it.
What is a search warrant?
Permission to search & seize by competent civilian authority.
What are the procedures for obtaining search authorization?
Probably cause must first be made.
1) AFOSI/SFS calls JA
2) JA makes PC determination
3) conference call is made with CC/MJ
4) SFS/AFOSI requests authorization & provides evidence
5) JA explains PC and gives opinion
6) CC/MJ made decision and records on 1176
7) Search is executed and reports back
What is the probable cause standard?
Reasonable belief that the person/property/evidence sought is located in a place or person to be searched.
Who has the authority to authorize a search?
CC for people/places under their command or MJ
In what places do we lose our reasonable expectation to privacy?
Any government property issued to you that is intended to be returned.
Describe the plain sight issue when it comes to search authorizations.
If someone has left evidence from a crime out to see from a legal place, they can take steps to seize it.
T/F: Inspections are not an opportunity to uncover evidence for a specific crime.
True.
Describe the inevitable discovery exception.
If authorities were going to obtain/uncover evidence as a result of a search, any action taken that would have previously made it inadmissible no longer matters.
T/F: Probable cause and a search authorization is required to get consent to search a property.
False.
Where does a right’s advisement derive from?
Art 31, 5th and 6th amendments
What is the number one protection Art 31 offers?
Protection from self-incrimination
Who must give an Article 31 right’s advisement?
Anyone acting in official capacity:
1) Law enforcement
2) Disciplinary
3) Position of Authority
4) Civilian/foreign law enforcement
Who is not required to give someone their Article 31 rights?
- Healthcare professionals
- Chaplains
List the items included in an Art 31 rights advisement.
- Nature of offense
- Right to remain silence
- Consequences of making a statement
What law(s) informs members of their right to counsel?
5th and 6th amendment
Which M.R.E.s are related to rights advisements?
301, 304, and 305
Describe a confession.
An acknowledgement of guilt.
Describe an admission.
Self-incriminating statement falling short of acknowledgement of guilt.
Describe an involuntary statement.
An inadmissible statement if obtained in violation of the self-incrimination privilege.
What are the different types of restraint?
- Conditions on Liberty
- Restriction in Lieu of Arrest
- Arrest
- Pretrial confinement
Briefly describe apprehension.
Taking a person into custody. Must have reasonable grounds to believe a crime has been/is being committed.
Who is authorized to apprehend someone?
- Military law enforcement
- Commissioned, warrant, petty, and NCOs
- Civilians w/ authorization to apprehend deserters
What is conditions on liberty?
Directing to person to do or refrain to do specified acts.
What is restriction in lieu of arrest?
Oral/written order directing someone to remain specified limits - still performs military duties.
What is arrest?
Restraining a person to remain within specified limits - not performing military duties.
What is pretrial confinement?
Physical restraint – is subjected to confinement and will be in jail.
What is important to remember about an interview’s location?
If vic is involved, ask where they feel comfortable being interviewed.
What do you avoid by pre-planning interview questions?
Negates possibility of recalling the witness.
Why should we avoid recording interviews?
They become discoverable.
What are some behaviors you should look out for when conducting interviews?
- Avoiding eye contact
- Body language/body position
- Stuttering/Stammering
- Redirect/Avoiding questions
What is an AF 1168?
Document that recounts from a witness’s perspective - broken down into 5 parts.
When do you activate the SVIP team?
All unrestricted versions of the following reports:
- Adult sexual assault
- Domestic violence w/ sexual assault and/or aggravated assault w/ grievous bodily harm
- Child abuse involving sexual assault and/or aggravated w/ grievous bodily harm
Who is part of the SVIP team?
- JAG
- 7-level Paralegal
- Special Victims Unit CTC
- Case agent/investigator
What is the general process for an Article 32 hearing?
- PHO is appointed by SPCMCA via a letter
- PHO coordinates date/time of hearing
- PHO reviews evidence in preparation for hearing
- PHO conducts hearing and drafts report to send to SPCMCA
What are the criteria for a PHO?
1) Impartial JAG certified under 27(b)(2) who is higher ranking than DC/TC
2) Must not be connected with the case
3) Must disclose potential grounds of bias, prejudice or impropriety
If there is uncharged misconduct discovered at the Art 32, the PHO will _______________.
Determine whether there is sufficient evidence to add the charges to the charge sheet at referral.
What are the processing requirements for a Chapter 4 request?
Airman’s Request -> Unit CC Action -> GCMCA
Who can approve a RILO?
SECAF
Who is the approval authority for the 7 day rule?
AFLOA/JAJM
If a case has not been referred, who can disapprove a RILO?
Anyone within the chain (SPCMCA/GCMCA/MACJOM)
What document cannot be completed if a RILO is pending and a court-martial has been completed?
The EOJ.
T/F: The military judge can see everything that was agreed to within a plea agreement.
TRUE.
The accused cannot waive the _____________ in a plea agreement.
right to counsel
You cannot go to trial within ___ days of referral in a GCM and within ____ days of referral in a SPCM.
7 and 3.
What are the two types of immunity?
Transactional and testimonial
_____________ immunity grants the witness immunity from trial by courts-martial for one or more offenses under the code.
Transactional
Immunity from the use of testimony, statements, and information directly or indirectly derived from any testimony/statements is called _____________ immunity.
Testimonial
The ______________ is the approval authority for immunity requests.
GCMCA or designee
Intra-command witnesses are paid by the _____________.
convening authority (all witnesses inside of the MAJCOM)
Inter-command witnesses are paid by _____________.
AFLOA/JAJM (all witnesses outside of the MAJCOM)
Who pays for a non-DoD expert witness to testify at a court-martial?
The convening authority
What organization always pays for experts in urinalysis cases?
JAJM
T/F: The expert witness MOA needs to be completed before requesting funding from the convening authority.
True.
When must the WFMS request be sent up for witness travel?
At least 10 calendar days before the witness has to travel
Whose responsibility is it to take care of all witnesses and to ensure their payments/DTS authorizations are completed?
The hosting legal office
Which form is used as a subpoena?
DD Form 453
T/F: There is only one way to serve a subpoena.
False, there are two: informal and formal.
What must be included in a subpoena sent to a witness in order for it to hold up in court?
- A single day of their witness payment ($40)
- Paid postage for them to return the signed subpoena
What is the difference between a formal and informal service of a subpoena?
Informal would be via mail or e-mail. Formal would be an in-person service which is the most dangerous option.
____________________ is used if someone receives their subpoena but didn’t respond or show up when he/she should have.
the warrant of attachment, DD From 454
What are the basic rules for photographic evidence?
1) Replaces physical evidence
2) Needs to be 5”x7” and in color
3) Digital camera photos are authorized
What are the four purposes of VWAP?
- Provide guidance f/ treatment of vics/wits of UCMJ offenses
- Mitigate physical, psychological, and financial hardships by vics/wits
- Foster cooperation of vics/wits within the MJ criminal justice system
- Ensure best efforts are made to accord to vics certain enumerated right.
How is a victim defined by the VWAP AFI?
Someone who has suffered physical, financial or emotional harm as a result of an offense.
___________ manages the VWAP program for the AF.
TJAG (aka CRO)
Who is the LRO for the VWAP program?
The installation CC, but may be delegated to the SJA.
T/F: The VWAP coordinator is responsible for implementing VWAP services for the entire AF.
False, only for the base.
The ____________ is responsible for assisting victims with the military justice process and expedited transfers.
victim liaison
Who are the members that form the VWAP council?
- SARC
- Family Advocacy Program
- Security Forces
- AFOSI
- Surgeon General
- Airman and Family Readiness Center
- Chaplain
- SJA
What does the VWAP council ensure?
Victim and witness service providers follow an interdisciplinary approach.
T/F: Civilians are not eligible for expedited transfers.
True.
What types of victims are eligible for expedited transfers?
1) Domestic violence
2) Stalking
3) Indecent viewing
4) Visual recording or broadcasting
5) Forcible pandering
6) Indecent exposure
List the different VWAP forms and describe their purpose.
2701 - Initial investigation info
2702 - Court-martial info
2703 - Post-trial info
2704 - Vic/wit certification and election concerning inmate status.
2705 - Notification of inmate status change
2706 - record for the proceeding year of each case involving vics, wits, or others who are entitled to VWAP services.
Explain how the DD 2706s are used to assist TJAG.
SJA submits 2706 to MAJCOM by 15 January.
MAJCOM sends theirs to JAJM by 15 February.
TJAG submits annual report using the DD 2706 NLT 15 March for the proceeding year to the Under Secretary for Personnel and Readiness.
What is the purpose of transitional compensation?
Provide limited benefits for dependents of members of the armed forces who have been on AD for more than 30 days and where the dependent abuse offense occurred after 29 Nov 1993.
Who is eligible for transitional compensation?
- Abused dependent of a former spouse who is not remarried
- Unmarried child under 18 yrs of age, including adopted or step child, who was residing with the accused at the time of the abused offense
- Child over 18 yrs old who are incapable of self-support due to mental illness
- Child over 18 yrs old but less than 23 yrs old and enrolled in a full time course of study at a SECDEF approved educational institution.
Who is responsible for acting on transitional compensation cases and for how long do they receive the benefits?
The convening authority and payment is typically for a period of 36 months
What are the SJAs responsibilities in relation to transitional compensation?
Ensuring the paperwork is completed properly and understanding the process.
What are some content requirements of SOD briefings?
- All cases closed in the last quarter
- CM and NJP processing times for YTD and last quarter
- Involuntary discharge cases completed and processing times
- Cases are from squadron, wing, NAF, MAJCOM, and AF
- One per year, rates per thousand
- Special interest items by Wg/cc such as ARIs, drug offenses, and UCI
What is the purpose of a findings worksheet?
To ensure the standard of beyond a reasonable doubt is met.
What are the contents of a findings worksheet?
Specification findings options and charge findings options.
T/F: Tally of panel’s votes and judges instructions are key items on a findings worksheet.
False, neither items are included on a findings worksheet.
What is the purpose of the sentencing worksheet?
To annotate the punishments and ensure they are authorized.
What procedures should be followed when building a ROT?
- Utilize ROT checklist from FLITE KM
- First vol is 1 inch; subsequent vols are 1.5 inch
- Each vol has a front cover page, DD Form 490. Contents of the vol are on the front cover
- Dividers need to be heavy card stock
________ holds the original ROT and 2 copies of the ROT.
JAJM
List the 9 main contents of a ROT.
1) EOJ
2) STR
3) Action, if any, by convening authority
4) Verbatim recording of CM
5) Original Charge Sheet
6) Convening Order and Amendments
7) Findings Forum Elections
8) Sentencing Forum Elections
9) All Exhibits
T/F: Anything that is not considered “main content” of a ROT is considered an attachment.
True
What does the SPCMCA consider when making a decision on the disposition of rape, sexual assault, or
forcible sodomy cases?
- Matters transmitted (from lower commander)
- Court-Martial charges (if any)
- Any independent review and recommendation received
- Victim Input, if any
- Consultation with a judge advocate
Why is an EOJ not required in a SCM?
The CA’s action serves as an EOJ.
What is the purpose of an EOJ?
Reflects the results of a CM as modified by any post-trial actions.
Initiates appellate proceedings.
What punishment is not authorized on an officer’s sentencing worksheet?
Hard labor without confinement.
Who is responsible for signing first indorsement of the EOJ?
The SJA
Who is responsible for ensuring action is taken, consistent with post trial directions from the reviewing or appellate authority?
The convening authority
What type of leave can a member take after they have been sentenced with a punitive discharge and are waiting on the CA’s review?
Voluntary leave
The convening authority (or SJA) is responsible for getting ____________ and sending it to ___________.
Accused’s address and JAJM
Volumes generated as a result of rehearing or dubay hearing are placed ___________ of the original ROT and the original volumes are numbered accordingly.
on top
What types of CMs are reviewed by a JAG under Art 64?
SCM w/ findings of guilt.
Review conducted at GCMCA lvl.
What types of CMs are reviewed by a JAG under 65(d)?
Any GCM/SPCM where:
(1) ACC waived/withdrew appeal to AFCCA
(2) Failed to file timely appeal
(3) Adjudged sentence did not exceed 6 mo confinement & punitive discharge not adjudged
Review conducted at GCMCA lvl.
What types of CMs are reviewed by TJAG under 69?
Any GCM where:
(1) Appellate review not waived/withdrawn
(2) No punitive discharge approved
(3) Confinement for less than 1 yr.
Reviewed by office of TJAG
What types of CMs are reviewed by AFCCA under Art 66?
Any GCM/SPCM where:
(1) Punishment included death
(2) Dismissal, DD, or BCD in punishment
(3) Confinement greater than 2 yrs
(4) Timely appeal by ACC and not subject to automatic review
(5) Cases referred to it by TJAG
(6) Timely appeals where TJAG sent case to AFCCA.
What types of CMs are reviewed by CAAF under 67?
Cases where:
(1) Death was affirmed by AFCCA
(2) All cases reviewed by AFCCA where TJAG orders CAAF review
(3) Accused petitions the court after AFCCA review
What types of CMs are reviewed by the Supreme Court under 67(a)?
Cases where Accused petitions Supreme Court after all lower courts have completed their review.
With the exception of 64a reviews, who is responsible for notifying the accused of the appellate court decisions?
JAJM
For Art 64 and 65(d) reviews, who is responsible for notifying the accused of the appellate court decision?
GCM legal office
What are the three other types of court hearings?
1) Rehearing
2) Dubay hearing
3) Contempt hearing
What is the composition of a rehearing?
- New members
- Military judge
- Accused Election
Which hearing looks into evidentiary issues?
DuBay
Which hearing looks into problems with the findings or sentencing of a CM?
Rehearing
What options does the SPCMCA have when disposing of 120 allegations where the VIC will not participate?
1) Admin action
2) No action
3) Offer NJP
T/F: Rumors alone do not meet the probably cause requirement.
True
T/F: A child can give consent to search a property.
False
