TAKING THE STAND FOR VICTIMS - Preparing for Court -

1. TAKING THE STAND FOR VICTIMS- Preparing for Court - CPT Meghan Vasquez Senior Trial Counsel III Corps & Fort Hood Meg.vasquez@us.army.mil

2. You Hear Court-Martial and Think of…

3. What Really Happens - Anatomy of a Court-Martial • Initial Disposition & Charging Decision • Article 32 & Referral • Pre-Trial Preparation • Court-Martial

4. Initial Disposition • When a criminal investigation comes to a close, the evidence is forwarded from CID or MP to The Office of the Staff Judge Advocate (OSJA) • A military lawyer issues an opine (legal opinion) that either supports or rejects prosecution of the subject

5. Initial Disposition • Rule for Court-Martial (RCM) 306: “Each commander has discretion to dispose of offenses by members of that command.” • Allegations of offenses should be disposed of in a timely manner at the lowest appropriate level of disposition

6. The Charging Decision – Trial Counsel Duties • Review all evidence • Develop a theory of the case/trial memo • List possible charging options • Conduct proof analysis of each charge • Consider prudential/tactical factors

7. The Charging Decision • Consider the following… • Nature/degree of harm • Panel’s perception/sense of fairness • Maximum punishments • Cooperation of the accused • Improper motives of witness/victim • Reluctance of victim to testify • Preserving lesser included offenses • Uncharged misconduct (MRE 404b) • Command’s need for good order and discipline

8. The Charging Decision

9. From Theory to DD Form 458 • The decision to charge is memorialized on The Charge Sheet (DD Form 458) • Personal Data (Section I) and Charges and Specifications (Section II) are completed • A formal accuser takes action after advice from his/her trial counsel

10. Preferral of Charges Any person subject to the code may prefer charges (RCM 307) Accuser signs the charges under oath before a commissioned officer

11. Preferral of Charges • Accuser must swear to: 1. Personal knowledge of the facts, or 2. Investigation into the matters set forth in the charges and specifications as true in fact to the best of that person’s knowledge and belief

12. Pretrial Investigation • RCM 405 provides, “No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made in substantial compliance with this rule.” • AKA – Article 32 Investigation

13. Article 32 • Military equivalent of a grand jury hearing • Independent investigating officer inquires into the truth of the matters set forth in charges, form of the charges and whether each charge is supported by evidence

14. Article 32 • Accused has right to counsel • Examination and confrontation of witnesses • Argument and recommendation

15. Article 32 • Investigating Officer (IO) is a non-lawyer and must be senior in rank to the accused Soldier • IO has a detailed military counsel to guide him/her through the proceedings

16. Article 32 Report • IO reports findings and recommendations on DD Form 457 • Standard applied is whether reasonable grounds exist to believe that the accused committed the offenses alleged on the Charge Sheet (speed bump to trial)

17. Pretrial Advice • Before referral of charges, they shall be referred to the staff judge advocate of the convening authority for consideration and advice (RCM 406)

18. Forwarding & Disposition of Charges Who may dispose of charges? • Only persons authorized to convene courts-martial or administer Article 15 punishment Prompt Determination! • When a commander with authority to dispose of charges receives charges, that commander shall promptly determine what disposition will be made in the interest of justice (RCM 401)

19. Action By Convening Authority • When in receipt of charges, Convening Authority may: 1. Dismiss 2. Forward to a subordinate commander 3. Forward to a superior commander 4. Refer to summary court or special court 5. Refer to a general court-martial

20. Referral of Charges • Referral is the order of a convening authority that charges against an accused will be tried by a specified court-martial

21. Types of Courts • Summary Court-Martial (30 days max. confinement) • Special Court-Martial (1 year max. confinement; BCD kick) • General Court-Martial (max. punishment authorized; DD kick)

22. Service of Charges • Trial counsel ensures servic of charges that have been referred upon the accused • Rules – no person may be brought to trial before a general court-martial within 5 days after service of charges (3 days for special courts)

23. Pretrial Matters • Discovery • Depositions • Deals/Alternate Dispositions

24. Pretrial Negotiations

25. Witness Preparation • Witness Preparation is key! • Directly translates to achieving theme/theory of case • Aids in solid direct examinations and ideas for cross-examination

26. Witness Preparation

27. Assembling the Court • RCM 901 – Opening Session • A court-martial is in session when the military judge so declares • RCM 911 –Assembly • The military judge shall announce the assembly of the court-martial

28. Voir Dire – RCM 912

29. Goals of Voir Dire • Obtain information for the intelligent exercise of challenges • Introduce counsel and accused and educate members about the facts/theory of the case

30. Challenges • Causal challenges (unlimited) based on actual or implied bias (or, if all else fails, the liberal grant rule) • Perempory challenges (only one) • The entire process is controlled by the military judge through two stages – group and individual voir dire

31. Case on the MeritsOpening Statements

32. Opening Statements • Member’s first opportunity to hear the story of the alleged crime • Put victim’s story before the court and outline theory of case • Build rapport with the panel

33. Witness Testimony

34. Direct Examination Objectives • Elicit witness observations/activities so the trier of fact understands, accepts and remembers the testimony • Lay a foundation for admission of documentary, demonstrative or physical evidence

35. Direct Examination Focus • The trier of fact’s focus (military judge or panel) should always be on the witness • The technique is single-fact, non-leading, open-ended questions -Allows witness to tell story -Minimizes presence of the lawyer

36. Effective Direct Examinations • Brief • Simple language/vary pace • Elicit descriptive narratives • Logically organized (chronology) • Use of exhibits (panel friendly) • Practice with witness in courtroom • Practice again

37. Common Problems on Direct • The witness who forgets – fear not! -Recollection refreshed -Recollection recorded -Leading questions -Recess

38. “Taking the Sting Out of Cross” • Consider volunteering weaknesses • For example, if the victim was drinking, elicit that fact on direct to “take the sting out of cross”

39. Direct Examination – Where did the Lawyer Go? • Remember, the focus is on YOU • Practice physically turning toward the panel to give your answer • You don’t need to rely on a lawyer—YOU are the witness with first-hand information known only by you. YOU are at the helm!

40. Why are Panel Members Asking Me Questions? • In military court, the panel members may ask questions of witnesses • Civilian juries are called juries because they do not actively participate in questioning witnesses • A panel queries any and all witnesses

41. How Are Questions Asked? • Members write questions on paper • The judge will ask if there are questions from the members; questions are passed to bailiff and onto military judge for review • Counsel review and note objections • Judge rules on objections and reads the question to the witness

42. Cross-ExaminationSelective Attacks on a Specific Story

43. Purpose of Cross-Examination • Introduce a new fact • Weaken or highlight a fact • Weaken or strengthen the credibility of a witness

44. Leading Questions Only • Leading questions gives the lawyer control • Leading questions declare the answer: Nonleading: Do you like to drink? Better: You like to drink? Best: You drink? You like it?

45. Cross-Examination Warnings • Don’t try to outwit the lawyer • If you feel a need to explain your answer, do • Don’t be bullied into yes or no • Don’t be afraid of silence; wait for the next question • Be firm, polite but not sarcastic • If you don’t know, say so

46. Findings Argument • RCM 919 • After the closing of evidence, trial counsel shall be permitted to open the argument. The defense shall be permitted to reply

47. Sentencing Case • Should the trial counsel secure a conviction, the trial proceeds immediately into the sentencing phase • Witnesses are called to testify regarding matters in aggravation • Counsel close with argument • Trial counsel may recommend a specific lawful sentence

48. Courtroom Procedure • After you are sworn, the Trial Counsel will conduct a DIRECT EXAMINATION (asking you who, what, where, when, why types of non-leading questions) • Defense Counsel may then conduct a CROSS-EXAMINATION where leading questions are proper and might feel hostile

49. Courtroom Procedure • Trial Counsel may RE-DIRECT • Defense Counsel may RE-CROSS • Finally, if this Court-Martial is a Panel case, the Panel Members may ask questions

50. Confidence-Builders for Testifying • Practice your testimony with the TC • Meet the Defense Counsel before you take the stand • See the courtroom before the trial • Practice your testimony in the courtroom under life-like conditions