Pretrial Hearikgs for Courts-Martial

• Author: by Captain Philip G. Meengs
• Pages: 02

1. 1NTROI)UCTION

   Anyone with much court-martial experience is aware of the impatient foot-shufiing of court members while counsel at an outof-eourt hearing display their legal brilliance before an audience limited to the law officer, a slightly bored court reporter, and a thoroughly confused accused. Many defense counsel have undoubtedly wondered about the effect on the outcome of their Caee when, at long last, the members return to the court room scowling at their watches and at counsel.

   Is there a solution-is there a better way? As is obvious from the titie and scope of this article the writer believes that there is. Through the use of a pretrial procedure somewhat similar to, but broader than, that employed by the federal district courts under Rule 12b of the Federal Rules of Criminal Prncedure, it would be possible to dispose of many, if not most, interlocutory questions prior to the assemblingof the full court-martial

   In the following sections we will look briefly at the need and justification for such a proeedure, the legality of such a procedure and the method for effectuating it, the scope of such procedure-when it should be used and what should be accomplished therein, and the status of a pretrial hearing.

   11. XEED

   This article naturally assumes the need and justification for a procedure such as was suggested in the introduction. However, it appears proper at this point to examine in a bit more detail the justification for such a proeedure.

   It will be noted that this entire article is directed towards pre-trial procedures for general courts-martial. It is recognized that

   "This article was adapted from a thesis presented to The Judge Advaeste General's School, US

   Army, Chsrlottesville. Virginia, while the author was

   B member af the Eighth Advanced Class. The opinions and e m e l u ~ i ~ n ~ ex- pressed herein are those of the author and do not necessarily represent the view8 of The Judee Advocate General's School or any other mvemmental aeeney.

   "* JAGC. U.S.

   Army; Past Judge Advocate, Fort MacArthur, California; member ai tho Yichigan State Bar: LL B , 1052, Unwermty of Michigan Law Sehaai.

   some sort of pretrial procedure might also be useful in certain special courts-martial. However, the present structure of special courts-martial does not lend itself to pretrial procedures. Since any ruling by the president on an interlocutory matter is subject to objection by a member,$ little would be pained by obtaining preliminary rulings prior to trial. Certain proposals discussed from time to time concerning the amendment of the special court-martial structure, if adopted, might change this conclusion, but for the present this matter will not be pursued any further.

   In only one reported military caseZ has a full-blown pretrial procedure of the type contemplated by this article been employed. A Marine named AI llullican was tried by general court-martial on 4 October 1965 on a charge of desertion. Five days prior to the trial a pretrial hearing was conducted by the law officer, during which evidence and arguments were received concerning the admissibility, inter olia, of records of three previous convictions of the accused on AWOL charges, and the admissibility thereof was finally determined.

   The law officer in Mullican stated rather clearly the usefulness of a pretrial procedure. At the commencement of the proceedings, he mid, in part:

   This hearing is candreted far aewral realms. , , , I definitely feel that

   swh a hearing ;s ta the benefit of the accused in a ease when it 1s known ahead of time that certain evidence which the Government plan3 to introduce will be objected to by the accused. Such a hearing 8s this guards the rights of the aceured ~n that it does not prejudice the court members who may o? may nat know of the purposes for nueh an out-of-eourt hearing. Next, 1 feel that it fullher protects the interests of the Government, and finally such a procedure mil expedite the trial of general courts-martial es~ea, and further does not unnecerrarily harass the court membm n-ho must clear the courtroom far out-of-eourt hearings and stand idly around while the iisuea are being decided in the out.of-caurt hearingg.3

   The above statement points up two of the distinct advantages inherent in the use of a pretrial hearing procedure. The firat is protection of the accused from the possibly prejudicial effects of having to raise motions and objections in open court. The Court

   PRETRIAL HEARINGS

   of Military Appeals' has recognized the possibility of prejudice arising from the determination of contested issues in open court and therefore has given the accused the right to have certain matters decided in out-of-eourt hearings.$ Nevertheless, it is obvious that in certain situation8 the mere raising of an issue in open court may prejudice the accused, even though the determination of the issue is outside the court members' presence. Particularly is this true in view of the increased sophiatication of the average court member now, as compared with the early days of the Code: Although it may be argued that objections can also be raised at an out-of-court hearing, this would not only require a high degree of foresight by the defense counsel in anticipating trial counsel's actions, but would stili not eliminate the speculation of court members. If the pretrial procedure had not been employed in Mullicun and defense counsel had been forced to contest the admissibility of the prior convictions in open court, a ruling favorable to the accused, followed by the most carefully-worded instruction, would not have expunged from the minds of the court members the thought that A1 Mullican had been in trouble before.

   The second justification pointed out by the Mullican law officer is the expedition of trials. Hardly separable from this is the unneeessaw harassment of the court members. Trials by general court-martial are expensive to the services in terms of time, money and manpower. Any proeedure which may cut down on this expense is worthy of consideration. The expeditious handling of trials will also result in better working relationships within commands, a greater respect for the system of military justice, and a more just result of trials from the standpoint of both the Govern-ment and the accused.

   In addition to the saving of court members' time, consideration should be given to unnecessary demands on the time and effort of counsel. A determination of disputed interlocutory questions prior to the time of trial could permit counsel to more adequately prepare for the trial with less wasted effort. For example, a

   4 Hereinafter generally referred to as the Court. The Uniform Code of Militsry Justice, the Act of 6 May 1950, 10 U.S.C. 55 801-840 (1866). is hereinafter referred to 81 the Code and cited 88 UCPJ, art. Citations of Articles of the Code can be converted to sections of Title 10 U.S.C.by adding

   800 to the number of the Article.

   6 For example, in United States Y. Catel. 8 USCMA 480, 26 CMR 260 (1958). the Court held that, upon request of the defense, it is mandatoq for the law officer to hold an out-of-court hearing on the admissibility of the aceuaed's pretrial confession.e For example, B lengthy out-of-court hearing following B plea of guilty immedistely indicstea to some expeneneed court members that the aceused has "made B deal."

   LOO 48lOB 51

   determination in favor of the prosecution on the admissibility oi certain evidence might preclude the necessity of calling one or more witnesses. This would not only save the counsel preparation time otherwise used in interr,iewing the witnesees, but would also save the Government the cost of witness fees. Conversely, a pre-trial determina:ion in favor of the accused on a jurisdictional question could not only preclude the necessity of assembling the court members, but would spare counsel countless hours of preparation on the merits of the case.

   It is interesting to note the results of B questionnaire employed by the Defense Appellate Division of the Army Judge Advocate General's Office. This questionnaire was sent recently to 50 Judge Advocate officers knosn lo have had experience as defense counsel. One of the questions w a ~ as follom;

   Da you think the ndmmsnar.on of justice ~n the mihtarg nould be en-

   proceea1r,gr,

   The answers ta these questions, as summarized by the Chief of the Defense Appellate Di\,ision:

   Almost all (02%--461 agreed that such pretrial proceeding3 aould be a good Idea.

   70% (31) felt that it %\auld be better TO mrieiy outhai.;rr pretrial pro. ceedings and 26% (13) felt that the Code should be amended TO repidre iueh proceeding8 8

   In addition, in answer to the question, "If you could make only one change in the UCMJ or its appiication, what would it be?", three of the officer8 answering considered authorization of pretrial of sufficient importance to list it a8 their choice.@

   The preceding comments point out many of the advantages which could result from a pretrial hearing procedure. Experienced counsel can undoubtedly conceive of mare. It should be naled at this point that paragraph 67a of the JIanual permits reference to the convening authority prior to convening a court of defenses and objectiona capable of determination without trial. However, such determinations are not final and can be renewed at trial, so such procedure hardly eliminates the need discussed in this chapter for a pretrial hearing procedure.

   -"Repart on Quoationnane Aniweied by a Gioup of JAGC Officers Selected far Their Experience 8 s Defense Calmel," Chief, Defense Appellate Dlnnan, Office of The Judge Advocate General, U.S. Arm)-, pp. 8-8 (undated).

   L Id. at D. 8

   PRETRIAL HEARIKGS

   In addition, Department of the Army Pamphlet 2i-9, The Law

   If he [the law ofieer] wlshen to confer wirh couniel in advance of trial wlth respect to a question of law that is hkely to arise at the trial, the lajl officer ahould afford e~uniel far both sides an opportunity to be present.lo

   Oficer...