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Article 34 Advice of the Staff Judge Advocate -Continued - 14134_227
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Chapter 8 Posttrial Duties and the Review Process - 14134_229
The  advice  of  the  SJA  includes  a  written  and signed statement that sets forth that person’s opinions regarding  the  following: l l l l Whether each specification on the charge sheet alleges an offense under the UCMJ Whether  each  allegation  is  substantiated  by  the evidence indicated in the Article 32 report of investigation Whether a court-martial would have jurisdic- tion  over  the  accused  and  the  offense(s) The action to be taken by the CA The  SJA  is  personally  responsible  for  the  pretrial advice  and  must  make  an  independent  and  informed appraisal of the charges and evidence to render the advice. Another person may prepare the advice, but the SJA is responsible for it and must sign it person- ally. The  advice  need  not  set  forth  the  underlying analysis or rationale for its conclusions. Ordinarily, the charge sheet, forwarding letter and endorsements, and report of investigation are sent along with the pretrial advice. In addition, the pretrial advice should include, when appropriate, a brief summary of the evidence;  discussion  of  significant  aggravating,  ex- tenuating, or mitigating factors; and any previous rec- ommendations, by commanders or others who have forwarded  the  charges,  for  disposition  of  the  case. There is no legal requirement to include such informa- tion  and  failure  to  do  so  is  not  an  error.  Lastly,  it should be noted that the legal conclusions reached by the SJA are binding on the CA whereas the recom- mendation is not. THE GENERAL COURT-MARTIAL TRIAL A GCM may try any person subject to the Code for  any  offense  made  punishable  under  the  Code. GCMs  also  may  try  any  person  for  a  violation  of Articles 83, 104, and 106. Upon a finding of guilty of an offense made punishable by the Code, GCMs may, within limits prescribed in the MCM, adjudge any punishment authorized under R.C.M. 1003. The death penalty  may  not  be  adjudged  if  not  specifically authorized for the offense by the Code or the case has been  referred  as  noncapital.  The  GCM  composed  only of a military Judge does not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been referred as noncapital.  In  essence,  this  means  the  death  penalty may not be imposed by a military judge, it must be imposed by a court composed of members. TRIAL  PROCEDURES As  you  have  just  learned,  there  are to convening a GCM. Once an Article (ion has been conducted and a case is prerequisites 32  investiga- referred to a GCM, the actual procedure of the trial is the same as that  of  an  SPCM.  However,  there  are  some  differ- ences between a GCM and an SPCM in composition and  qualification  of  parties. A GCM is composed of a military judge and not less than five members or except for in capital cases a military  judge  alone,  if  requested  and  approved. The  military  judge  of  a  GCM  is  designated  for such  duties  by  the  Judge  Advocate  General,  certified to be qualified for duty as a military judge of a GCM and  is  assigned  and  directly  responsible  to  the  Judge Advocate   General. There  is  no  difference  in  the  qualifications  of  any person who may be assigned to act as a member in a GCM.  The  only  difference  is  that  there  must  be  a minimum of five members appointed. If the accused elects  to  be  tried  by  a  court  composed  of  enlisted members,  then  the  GCM  must  consist  of  at  least  two enlisted  members. As in an SPCM, a DC or associate DC must be certified under Article 27(b), UCMJ, to perform the duties of DC at a GCM. However, unlike the SPCM the  TC  only  need  be  a  commissioned  officer,  in  a GCM the TC must be a person certified by the Judge Advocate  General  under  Article such  duties. SUMMARY 27(b)  to  perform This  chapter  has  given  you  the  insight  needed  to understand how summary, special, and general court- martials work. As a Legal man you will be involved in court-martial  proceedings  whether  it  is  from  the  con- vening authority level or at a NLSO where you will be involved in some aspect of the trial proceedings itself. The  information  found  in  this  chapter  should  become second nature to you as you gain experience in the Legalman rating and process cases for court-martial. 7-30

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