No. You should never speak to a potential witness in your court-martial, Article 15 proceeding, NJP proceeding, or even a potential witness in a criminal investigation. If you speak to that witness, you may put yourself at risk for being charged with another offense, “Obstructing Justice,” under Article 134 of the U.C.M.J. To be guilty … Read more
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Whether or not to enter into a pretrial agreement prior to your court-martial really depends on the facts of your case. A pretrial agreement, sometimes called a “PTA,” may be offered to an accused opting to plead guilty to the court-martial charges he is facing. In exchange for pleading guilty, sometimes the command will offer … Read more
Discriminatory or selective prosecution occurs in the military when the command, in bad faith, singles out an individual for prosecution at a court-martial while not prosecuting another servicemember who was alleged to commit the same or similar offense. For example, if two servicemembers were equally involved in a theft and only one faces prosecution because … Read more
Yes. A convicted appellant may find relief on appeal by arguing that the proof provided by the government during his court-martial was legally and/or factually insufficient to support the conviction he received. Legal insufficiency means that a reasonable fact finder (court-martial panel or military judge) could not have found that the proof presented met the … Read more
If you are in this situation, you may be able to get another look from a promotion board. If you can show that there was a material error in your personnel records or that they were missing material information when the records were reviewed by the board that decided to pass you over, you can … Read more
Yes. Under Military Rule of Evidence (M.R.E.) 614, the panel members and/or the military judge in a court-martial may call witnesses and ask questions of witnesses despite the fact that they are neither the prosecutor nor the defense counsel in the court-martial. If a member of the court-martial panel wishes to ask a witness a … Read more
As I review military appellate decisions, I sometimes find myself amazed at the facts leading up to the court-martial. For instance, recently I read an Air Force case, U.S. v. Lovely, where the appellant was questioned by an Air Force Special Investigator and was indecisive about requesting an attorney. At first, he affirmatively requested an … Read more
Post Traumatic Stress Disorder (PTSD) is real and it affects numerous servicemembers. While all of the services have implemented policies to try to eliminate the stigma that was once put on a servicemember seeking mental health, some servicemembers are still hesitant to talk about their mental suffering. I have met with clients from time to … Read more
During a court-martial, a defense counsel may make a motion to the military judge for a mistrial. If a motion for a mistrial is granted by the military judge, then the servicemember’s court-martial is terminated. The charges and specifications in the court-martial are withdrawn and returned to the convening authority. The convening authority can then … Read more
The law has long recognized that a husband and wife have a sacred relationship and that they should not be forced to turn on each other in a court of law. The Military Rules of Evidence 504 provides a husband and wife two different types of spousal privileges at a court-martial. The first type of … Read more