Submission of Past-Trial Review to Accuaed Prior to Convening Authority's Action

• Author: Colonel Jasper L. Searlea
• Pages: 02

Recently, the Court of Military Appeals has shown considerable concern for the right of an accused to become familiar with the contenta of the post-trial reviemr prior to the action of the convening authority. Thus, in United States v. Gnfin,' the Court, discussing the propriety af a staff legal officer's referring, in the course of the review, to "other facts concerning the accu8ed's absence" which "facts" were to be found in the record of trial of another accused, stated :

"Unquestionably, it was error for the convening authority to consider, in his deliberations on the sentence, adverse matter from outside the rmrd without affording the amused an opportunity to rebut or explain that matter."gPreviously, the Court had indicated its concern with the standard employed by reviewers in determining the sufficiency of evidence as manifested by language appearing in the review. Thus, where such language suggested that the convening authority was bound by the findings of the court-martial 8 or that an appellate standard had been employed by the staff legal advisor,' a new review, demonstrating emplogment of a correct standard,6 would be required. In United Stutes v. Fields,6 the Court, noting the large number of recent Cases dealing with the content8 of the review, set forth the minimum requirements for the written review of every trial by general court-martial resulting in a convietian.

* Chairman, Board of Review Xumber 3, Office of The Judge AdTorate

General of the Army. BS Univerairg. of California 1929 and LLBHaatinzs College of The Law. University of California 1832. Member of the State Bar if California and of the Institute of Military Law. Cham man, Military Law and Justice Committee, Pentagon Chapter, Federal Bar Association. The oainions. doctrines. and conclusioni exoreased herein are thore of the inkividuai author and do not neceiisrily r&e3ent the opinion or doctrine of the Judge Advocate General'% School, the Judge Advocate General's C o r m the Demrtment of the Arms. or anv aihm

3IILITARY LAW REVIEm- 1. A summary of the evidence. 2. An opinion as ta the adequacy and weight of the evidence. 3. An opinion relatire to the effect of any error or irregularity. 4. A specific recommendation as to the action to be taken, 6. Reasons for both the opinions and the mommendation.

The Court noted that "these requirements follow generally the areas of the convening authority's powers over findings and sentence as established by Article 64 of the Cade . . . , " Of course, where the accused has either judicially confessed or pleaded guilty, some Of these requirements do not have to be met.B

It cannot be overemphasized that the staff judge advocate's re-view "mut do more than summarize: it must also advise."' Thus, nhere a revien in a canteated case fails to advise the convening authority as to the reviewer',? opinion as to the sufficiency of the evidence, it is fatally defective.10 In a word, the review must contain B reasoned evaluation. Both the legal and factual sufficiency of the evidence must be appraised." A staff judge advocate cannot.stop with the generality that "the competent evidence i~ sufficient ni law" or "legally sufficient," but he must make B factual evalua-tion of the proof against the backdrop of the "reasonable doubt" standard; also he should inform the convening authority of the latter's duty to determine the credibility of wituemes and reaoive controverted questions of fact and that he must be satisfied beyond a reasonable doubt of accused'a guilt.ls Countless reviews have been stricken down on this last point.

- ~ ~ _ _

CYR344 (1968).12 C.S. Y. Romero, 8 U S C M 621. 25 CYR 38 (195;)

ji

Standard pmvmms uhich ihould he included as a akbpars8iaph in paragraph 4 and BQ paragraph 5b reapiccively. ai every staff judge advocate's review (except aequitisls) are bvggeited I" the JAG Chronicle Laker -e follows:

tionr ai fact. Befoie a finding of guilty you muat determine

Ltr 22,r.

"b The competent evidence of record establisher the accused's guilt beyond B rearonable doubt and the findings ai milty are CO~RILm ls%v

and fact." 57 Chron Ltr 31 12. The inelusion of the suggested pma-graphs should obviate iiiucn appeila!e Iinpatmn0 *GO >-e?"

POST TRIAL REVIEW

Xo less important is the requirement that the review be "individualized" and not tied to a particular command policy or viewpoint." In L'nitrd States v. Plitmrnr~,1~the review was found...