Last Updated: 1/20/21
CHAPTER 14
Pretrial Advice
-
Introduction
-
Pretrial Advice Purposes
-
Pretrial Advice Preparation
-
Pretrial Advice Defects
-
Sexual Assault Cases
I. INTRODUCTION
A. Defined. Pretrial Advice (also known as Article 34 Advice) is the SJA's written advice given to the Convening Authority prior to referral. There are mandatory components to the advice (covered in this outline and also found at R.C.M. 406), and optional components.
B. General Courts-Martial. Written pretrial advice is a prerequisite to referral to a General Court-Martial.
C. Special Courts-Martial. The 2016 Military Justice Act (2016 MJA) requires that a “convening authority shall consult a judge advocate on relevant legal issues." Additionally, the Army requires a written pretrial advice prior to referral to a Special Court-Martial. AR 27-10, para 5-28(b) (11 May 2016) ("The servicing staff judge advocate will prepare a pretrial advice, following generally the format of R.C.M.406(b).").
II. PRETRIAL ADVICE PURPOSES
A. Substantial Pretrial Right of the Accused.
1. Protects accused against trial on baseless charges.
2. Protects accused against referral to an inappropriate level of court-martial.
3. Limited veto over convening authority's power to refer charges.
B. Prosecutorial Tool.
1. Provides legal advice to the convening authority regarding the charges.
2. Additional opportunity for the SJA/military justice section to review the charges (form, substance, etc.) prior to referral.
III. PRETRIAL ADVICE PREPARATION
A. Mandatory Contents. UCMJ art. 34.
1. Per R.C.M. 406(b), the Pretrial Advice shall, in a written and signed statement, include the following:
a) Conclusions with respect to whether each specification alleges an offense under the UCMJ;
b) Conclusions with respect to whether there is probable cause to believe the accused committed the offense charged in the specification;[1]
c) Conclusions with respect to whether a court-martial would have jurisdiction over the accused and the offense; and
d) A recommendation as to the disposition that should be made of the charges and specifications by the convening authority in the interest of justice and discipline. .
e) Capital Cases ONLY: The pretrial advice should give notice of aggravating factors prior to arraignment, per R.C.M. 1004(b)(1) and (c).
2. Binding Effect on the Convening Authority
a) The three legal conclusions are binding on the convening authority. For example, if the Staff Judge Advocate concludes there is no jurisdiction over the offense, then the affected charges and their specification CANNOT be referred.
b) The SJA's recommendation as to referral is non-binding. The convening authority may follow it, or not follow it, as s/he deems appropriate.
c) Sex related offenses. In certain sex related offenses, the Staff Judge Advocate’s recommendation as to referral will impact the level of subsequent review of a convening authority’s non-referral decision. See AR 27-10, para 5-19 (11 May 2016).
3. Basis for the Recommendation. Practitioners should consult the Non-Binding Disposition Guidance at Appendix 2.1 of the Manual for Courts-Martial in formulating a recommendation as to disposition.
4. Practice Tip: When preparing the Pretrial Advice, check R.C.M. 406 to make certain all of the mandatory contents are covered.
B. Optional Contents
1. Relevant additional information. The discussion to R.C.M. 406(b) states that "[t]he pretrial advice should include, when appropriate: a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; any recommendations for disposition of the case by commanders or others who have forwarded the charges; and any recommendations of the Article 32 preliminary hearing officer." Failure to include this information is not an error.
2. Rationale or underlying analysis. There is no requirement that the Staff Judge Advocate include his rationale or underlying analysis regarding his legal conclusions or recommendation
C. Who Prepares/Signs the Advice?
1. Contents. The SJA is personally responsible for the contents of the advice. The SJA must make an independent and informed appraisal in arriving at his conclusions.
2. Preparation. The SJA does not have to prepare the advice by himself/herself. Trial counsel may draft the pretrial advice for the SJA's consideration.
3. Signature. The SJA (or Acting SJA) must personally sign the pretrial advice. Signing “For the SJA" is error. United States v. Hayes, 24 M.J. 786 (A.C.M.R. 1987).
D. Subsequent Disqualification of the SJA to Prepare Post-Trial Recommendations
1. Controverted Pretrial Advice. If there sufficiency or correctness of the Pretrial Advice is challenged at trial, the SJA may be disqualified from preparing the post-trial recommendation. R.C.M. 1106(b); United States v. Lynch, 39 MJ 223 (CMA 1994) (SJA must disqualify self from participating in the post-trial recommendation where the accused raised “a legitimate factual controversy. . .between the SJA and the Defense Counsel.”)
2. Impartiality. Pretrial advice which calls into question the SJA’s impartiality may disqualify the SJA from preparing the post-trial recommendation. United States v. Plumb, 47 MJ 771 (A. F. Ct. Crim. App. 1997) (findings and sentence set aside where pretrial advice (in conjunction with other errors) referred to the accused as a "shark in the waters, [who] goes after the weak and leaves the strong alone.")
E. Enclosures to the Pretrial Advice. Any enclosure should be listed on the Pretrial Advice itself.
1. Charge Sheet
2. Forwarding Letters and Endorsements
3. Report of Investigation, DD Form 457
4. Allied papers.
5. Character and military service of the accused. Pursuant to section 1708 of the 2014 NDAA, the discussion to R.C.M. 306(b) no longer includes “the character and military service of the accused” as a factor for command consideration in the initial disposition decision.
F. Discovery
1. AR 27-10 now mandates pretrial advice in Special Courts-Martial, provide those to the defense as well. NOTE: There is no longer a subsection 406(c) that mandates sharing the Pretrial Advice with the defense.
IV. PRETRIAL ADVICE DEFECTS
A. Accuracy of contents. All conclusions, advice, and information included in the Pretrial Advice must be accurate, even if the contents is optional.
B. Standard for Relief. Information which is so incomplete as to be misleading may result in a determination of defective advice, necessitating appropriate relief. R.C.M. 406(b) discussion. United States v. Kemp, 7 MJ 760 (A.C.M.R. 1979); United States v. Murray, 25 MJ 445 (CMA 1988) (Pretrial Advice which omitted a charge is a procedural error tested for prejudice, considering several factors: whether the charges were serious enough to warrant trial by general court-martial; whether they were supported by the evidence before referral; how the appellant pleaded; whether the appellant objected to the advice at trial; and whether the error was disclosed to the convening authority during the post-trial process.)
C. Types of Relief
1. Continuance to address the defect. Discussion to R.C.M. 906(b)(3). SJA neglects to include the mandatory contents: the military judge should ordinarily grant a continuance so the defect may be corrected.
2. Defects are not jurisdictional.
D. Waiver. Objections are waived if not raised prior to entry of plea or if the accused pleads guilty. However, for good cause shown, the military judge may permit a party to raise a defense or objection or make a motion or request outside of the timelines permitted. See R.C.M. 905(b) and (e); see generally R.C.M. 910(j).
V. SEXUAL ASSAULT CASES
A. A GCMCA’s decision not to refer certain sex related offenses must be forwarded for review by a superior GCMCA. The level of GCMCA depends on the SJA’s advice.
B. A certification that the victim was notified of the opportunity to express their views regarding the preferred disposition of the offense for consideration by the convening authority must be included.
C. Authority. AR 27-10, para 5-19(c)(5) (11 May 2016) (Implementing Section 1744 of the National Defense Authorization Act for Fiscal Year 2014).
Practice Tip: Practitioners may wish to notify victims of the opportunity to express their views regarding the preferred disposition of the offense to the convening authority BEFORE the SJA presents his pretrial advice, thereby making the victim's preferred disposition a supplemental enclosure to the pretrial advice packet.
[1] The legacy Article 34 required conclusions that the allegation of each offense was “warranted by the evidence indicated in the report of investigation.”