Last Updated: 1/20/21
CHAPTER 14
Pretrial Advice
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Introduction
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Pretrial Advice Purposes
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Pretrial Advice Preparation
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Pretrial Advice Defects
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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 or, in cases where the Special Trial Counsel has exercised authority, a written determination provided to the referral 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, or a written determination, is a prerequisite to referral to a General Court-Martial.
C. Special Courts-Martial. Rule for court-martial R 406 provides that prior to referral, the “convening authority shall consult a judge advocate on relevant legal issues." There is no requirement that the SJA advice be in writing for a referral to a Special court-martial; however, it is recommended. Note, that RCM 406 requires a Special Trial Counsel to make a written determination for both General and Special courts-martial.
D. As a reminder, there is a difference between referral authority and convening authority. A convening authority may be both a referral authority and a covening authority; OSTC may be a referral authority but not a convening authority. Thus, OSTC may order a case referred but the case is convened by the convening authority.
II. PRETRIAL ADVICE PREPARATION
A. Mandatory Contents. UCMJ art. 34.
1. Per R.C.M. 406(a), 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 disposition is non-binding. The convening authority may follow it, or not follow it, as s/he deems appropriate.
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.
III. 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(a) 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).
IV. Additional Notes.
A. If probable cause is found and the case is not referred, AR 27-10 para 17-14 requires a Government representative (Trial Counsel, Special Trial Counsel, or Chief of Justice) to "speak directly to the victim" and "communicate the reasons for the non-prosecutorial decision."
B. In accordance with RCM 306(e) when making a disposition decision, the command "shall consider such views as to the victim's preference for jurisdiction."
C. Note, AR 27-10, para 5-29(c) discusses mandatory review of non-referral decision's by convening authorities. This provision is moot with the implentation of OSTC.
Practice Tip: In practice, victims will be provided an opportunity to express their views regarding the preferred disposition of the offense to the convening authority BEFORE the a referral decision is made.
[1] The legacy Article 34 required conclusions that the allegation of each offense was “warranted by the evidence indicated in the report of investigation.”