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Advice to Accused—Rights
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Summary Court-Martial Acknowledgement of Rights and Waiver - 14134_204
unless they are admitted according to the Military Rules of  Evidence l The right to plead not guilty or guilty l The right to cross-examine witnesses and have the  SCM  officer  cross-examine  witnesses  on  behalf  of the  accused l The right to call witnesses and produce evidence with the assistance of the SCM officer, if necessary l The right to testify on the merits or to remain silent with the assurance that no adverse inference will be drawn by the SCM officer for such silence l If any findings of guilty are announced, the right to remain silent, to make an unsworn statement, oral or written or both, to testify, and to introduce evidence in extenuation  and  mitigation . The right to object to trial by SCM l The maximum sentence that the SCM officer may adjudge if found guilty of the offense(s) alleged The maximum punishment at a SCM includes the following: E-4   and   below—The   jurisdictional   maximum sentence that an SCM may adjudge in the case of an accused who, at the time of trial is in paygrade E-4 or below, extends to (1) reduction to the lowest paygrade (E-1);  (2)  forfeiture  of  two-thirds  of  1  month’s  pay (CA  may  apportion  collection  over  no  more  than  3 months);  (3)  a  fine  not  to  exceed  two-thirds  of  1 month’s pay; (4) confinement not to exceed 1 month; (5) hard labor without confinement not to exceed 45 days (instead of confinement); and (6) restriction to specified  limits  for  2  months.  If  the  accused  is  at- tached to or embarked in a vessel and is in paygrade E-3 or below, he or she may be sentenced to serve 3 days’  confinement  on  bread  and  water/diminished  ra- tions and 24 days’ confinement instead of 30 days’ confinement. E-5  and  above—The  jurisdictional  maximum  that an SCM could impose in the case of an accused who, at the time of trial is in paygrade E-5 or above, extends to  (1)  reduction,  but  only  to  the  next  inferior  pay- grade;  (2)  restriction  to  specified  limits  for  2  months; and  (3)  forfeiture  of  two-thirds  of  1  month’s  pay. Unlike NJP, where an E-4 may be reduced to E-3 and then   awarded   restraint   punishments   imposable only upon an E-3 or below, at SCM, an E-5 cannot be sentenced to confinement or hard labor without confinement even if a reduction to E-4 has also been adjudged. Advice  to  Accused  Regarding  Counsel While  the  MCM,  1984,  created  no  statutory  right to detailed military defense counsel at an SCM, the CA may still permit the presence of such counsel if the accused can obtain such counsel. However, the MCM, 1984, has created a limited right to civilian defense counsel at SCMs. The accused has a right to hire a civilian lawyer and have that lawyer appear at trial, if such appearance will not necessarily delay the proceedings  and  if  military  exigencies  do  not  prevent it. The accused must, however, bear the expense in- volved. If the accused wishes to retain civilian coun- sel,  the  SCM  officer  should  allow  him  or  her  a reasonable  time  to  do  so. An accused has no right to military counsel at an SCM. However, if an accused was not given an oppor- tunity  to  consult  with  counsel  before  accepting  an SCM, the SCM will be inadmissible at a later trial by court-martial. The term  independent  counsel  means a lawyer  qualified  within  the  meaning  of  Article  27(b), UCMJ,  who,  in  the  course  of  regular  duties,  does  not act as the principal legal advisor to the CA. To be admissible at a later trial by court-martial, evidence  of  an  SCM  at  which  an  accused  was  not actually represented by counsel must affirmatively demonstrate  that: l l l the accused was advised of his or her right to confer with counsel before deciding to accept trial by SCM; the  accused  either  exercised  his  or  her  right  to confer with counsel or made a voluntary, know- ing, and intelligent waiver; and the accused voluntarily, knowingly, and intel- ligently waived his or her right to refuse an SCM. If an accused has been properly advised of his or her  right  to  consult  with  counsel  and  to  refuse  an SCM, his or her elections and/or waiver in this regard are made in writing and are signed by the accused. Use  a  form  similar  to  that  shown  in  figure  7-1  to record the advice/waiver. It should be made on a page 13  of  the  accused’s  service  record  with  a  copy  at- tached to the record of trial. The Acknowledgement of Rights and Waiver, properly completed, contains all the necessary advice to an accused. When it is prop- erly executed, it will establish a voluntary, knowing, 7-5

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