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safeguard evidence is important for all involved, from
the security investigator to the TC. As an LN working
in the trial division, you could possibly be responsible
for keeping and maintaining evidence. Observing the
proper procedures will save a lot of embarrassment for
you and the command.
Disposition of Evidence
When no longer needed for a court-martial or other
purposes, property of evidentiary value should be
disposed of as follows: if the owner of the property is
known, and it is legal for him or her to have it, return it;
if it is legal to own the property in question, but the
owner is unknown, turn the property over to the property
disposal officer, unless the property is money, in which
case it is turned over to the disbursing officer; and if the
property is illegal to have, then destroy it and keep a
record of its destruction.
PRETRIAL REVIEW OF CHARGE SHEET
What do you look for when reviewing charge sheets
and allied papers before trial? Well, the answer is not
standard because every SJA and NLSO operation
throughout the world has its uniqueness because of
geographical responsibilities. As a senior LN, it will be
your responsibility to be able to adapt to these local
requirements.
The following are the basic procedures
that are common to all pretrial reviews.
Purpose of Review
Aside from the routine review of a charge sheet, the
critical area is whether or not the specification(s) is/are
sufficient. In other words, if a specification of which an
accused has been found guilty fails to allege an offense
under the UCMJ or shows lack of jurisdiction, the
proceedings as to that specification will not be legally
valid and have no legal effect. If a specification alleges
an offense under the UCMJ, proceedings as to that
specification should not be held invalid solely because
the specification is defective; however, if it appears from
the record that the accused was, in fact, misled by the
defect or that his or her substantial rights were otherwise
materially prejudiced, appropriate corrective action
must be taken.
The test of sufficiency of a specification is not
whether it could have been made more definite or
certain, but whether the facts alleged and reasonably
implied set forth the offense sought to be charged with
sufficient clarity to inform the accused of what he or she
must defend against. Whether the record is sufficient to
enable him or her to avoid a second prosecution for the
same offense must also be considered in applying the
test.
Sworn Charges
Once the charges and specifications have been
prepared, they are signed and sworn to by the accuser
before an officer authorized to administer oaths and
must state both that the signer has personal knowledge
of, or has investigated, the charges set forth, and that
they are true to the best of his or her knowledge and
belief. The accuser must be a person subject to the
UCMJ. Usually, the CO has the officer who conducted
the preliminary investigation sign the charges.
Statute of Limitations
Except for certain offenses, there is a time limit
specified in Article 43, UCMJ, within which a person
may be charged with an offense. Unless the statute of
limitations has been tolled, extended, or suspended, or
unless the offense is one for which there is no limitation,
sworn charges must be received by the officer exercising
SCM jurisdiction over the command within the
specified time.
See Article 43 for the statute of
limitations on all offenses under the
Jurisdiction
An important area of review is
examine jurisdiction and see why it
offense has been alleged. After all,
UCMJ.
jurisdiction. Let’s
is critical when an
if the government
does not have the jurisdiction over the accused, it cannot
try the case.
JURISDICTION OVER THE ACCUSED.—
Generally speaking, a court-martial has jurisdiction to
try only military members on active duty. Therefore,
each specification must clearly indicate that the accused
is on active duty. Jurisdiction over the accused normally
begins with a valid enlistment and ends with delivery of
valid discharge papers.
In most cases, there is little doubt that the accused
is on active duty; that is, he or she has validly enlisted.
However, even when there is no valid enlistment, the
accused may still be subject to court-martial
jurisdiction.
If an enlistment ceremony has occurred,
but is for some reason invalid, the doctrine of
constructive enlistment may apply; one who acts as if
he or she is in the military, accepts the pay and benefits,
and wears the uniform, is deemed to be in the military
even though his or her original enlistment is invalid for
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