Courts-Martial and Service Members' Rights

Stephen Hayes Carpenter JR

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Military Law Attorney

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Posted over 5 years ago. 1 helpful vote

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Courts-Martial and The Right to Counsel

In the military your right to an attorney is much broader than in the civilian sector. Service-members charged with a crime are automatically detailed a military defense attorney without regard to any ability to pay or possible sentence. The accused may also retain a civilian counsel, but only at his own expense. Under article 31(b) of the UCMJ, military investigators and police must advise soldiers of their rights against self incrimination whenever the soldier is reasonably suspected of a crime. These rights are not dependent on custodial interrogation. When custodial factors are clear, however, Miranda and the right to counsel also attach. In either case, failure to advise a soldier of his article 31(b) rights will result in the suppression of his statement.

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Pre-Trial Article 32 Investigation

During the Article 32 hearing, the prosecution calls witnesses and offers documentary evidence. The accused and counsel are not only present, but have the right to cross-examine adverse witnesses and even present a defense. Witness testimony is taken under oath and is tape-recorded. After this hearing the investigating officer (IO) drafts a written report detailing his or her findings of fact and recommended disposition of the charges to the convening authority. The convening authority next considers the IO nonbinding recommendations. Becuase the IO's written advice is only advisory the appointing authority can summarily disregard the IO's report. Thus, even if a defense counsel persuades an IO to see things his way the battle is far from over. Finally, if the IO fails to conduct a "thorough and impartial" investigation defense counsel should ask the military judge to order another Article 32 hearing.

Additional Resources

The Carpenter Law Firm, P.C.

The National Institute of Military Justice

Washington State Bar News

King County Bar Bulletin / Seattle, WA

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