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TAKING THE STAND FOR TAKING THE STAND FOR VICTIMSVICTIMS

- Preparing for Court -- Preparing for Court -

CPT Meghan VasquezSenior Trial Counsel

III Corps & Fort HoodMeg.vasquez@us.army.mil

You Hear Court-Martial and Think You Hear Court-Martial and Think of…of…

What Really Happens - Anatomy of a What Really Happens - Anatomy of a Court-MartialCourt-Martial

• Initial Disposition & Charging Decision

• Article 32 & Referral

• Pre-Trial Preparation

• Court-Martial

Initial DispositionInitial Disposition

• When a criminal investigation comes to a close, the evidence is forwarded from CID or MP to The Office of the Staff Judge Advocate (OSJA)

• A military lawyer issues an opine (legal opinion) that either supports or rejects prosecution of the subject

Initial DispositionInitial Disposition

• Rule for Court-Martial (RCM) 306:

“Each commander has discretion to dispose of offenses by members of that command.”

• Allegations of offenses should be disposed of in a timely manner at the lowest appropriate level of disposition

The Charging Decision – Trial The Charging Decision – Trial Counsel DutiesCounsel Duties

• Review all evidence

• Develop a theory of the case/trial memo

• List possible charging options

• Conduct proof analysis of each charge

• Consider prudential/tactical factors

The Charging DecisionThe Charging Decision

• Consider the following…– Nature/degree of harm– Panel’s perception/sense of fairness– Maximum punishments– Cooperation of the accused– Improper motives of witness/victim– Reluctance of victim to testify– Preserving lesser included offenses– Uncharged misconduct (MRE 404b)– Command’s need for good order and

discipline

The Charging DecisionThe Charging Decision

From Theory to DD Form 458From Theory to DD Form 458

• The decision to charge is memorialized on The Charge Sheet (DD Form 458)

• Personal Data (Section I) and Charges and Specifications (Section II) are completed

• A formal accuser takes action after advice from his/her trial counsel

Preferral of ChargesPreferral of Charges

Any person subject to the codemay prefer charges (RCM 307)

Accuser signs the charges underoath before a commissionedofficer

Preferral of ChargesPreferral of Charges

• Accuser must swear to:

1. Personal knowledge of the facts, or

2. Investigation into the matters set forth in the charges and specifications as true in fact to the best of that person’s knowledge and belief

Pretrial InvestigationPretrial Investigation

• RCM 405 provides, “No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made in substantial compliance with this rule.”

• AKA – Article 32 Investigation

Article 32Article 32

• Military equivalent of a grand jury hearing

• Independent investigating officer inquires into the truth of the matters set forth in charges, form of the charges and whether each charge is supported by evidence

Article 32Article 32

• Accused has right to counsel

• Examination and confrontation of witnesses

• Argument and recommendation

Article 32Article 32

• Investigating Officer (IO) is a non-lawyer and must be senior in rank to the accused Soldier

• IO has a detailed military counsel to guide him/her through the proceedings

Article 32 ReportArticle 32 Report

• IO reports findings and recommendations on DD Form 457

• Standard applied is whether reasonable grounds exist to believe that the accused committed the offenses alleged on the Charge Sheet (speed bump to trial)

Pretrial AdvicePretrial Advice

• Before referral of charges, they shall be referred to the staff judge advocate of the convening authority for consideration and advice (RCM 406)

Forwarding & Disposition of Charges Forwarding & Disposition of Charges

Who may dispose of charges?

– Only persons authorized to convene courts-martial or administer Article 15 punishment

Prompt Determination!

- When a commander with authority to dispose of charges receives charges, that commander shall promptly determine what disposition will be made in the interest of justice (RCM 401)

Action By Convening AuthorityAction By Convening Authority

• When in receipt of charges, Convening Authority may:

1. Dismiss

2. Forward to a subordinate commander

3. Forward to a superior commander

4. Refer to summary court or special court

5. Refer to a general court-martial

Referral of ChargesReferral of Charges

• Referral is the order of a convening authority that charges against an accused will be tried by a specified court-martial

Types of CourtsTypes of Courts

• Summary Court-Martial (30 days max. confinement)

• Special Court-Martial (1 year max. confinement; BCD kick)

• General Court-Martial (max. punishment authorized; DD kick)

Service of ChargesService of Charges

• Trial counsel ensures servic of charges that have been referred upon the accused

• Rules – no person may be brought to trial before a general court-martial within 5 days after service of charges (3 days for special courts)

Pretrial MattersPretrial Matters

• Discovery

• Depositions

• Deals/Alternate Dispositions

Pretrial NegotiationsPretrial Negotiations

Witness Preparation Witness Preparation

• Witness Preparation is key!

• Directly translates to achieving theme/theory of case

• Aids in solid direct examinations and ideas for cross-examination

Witness Preparation Witness Preparation

Assembling the CourtAssembling the Court

• RCM 901 – Opening Session

• A court-martial is in session when the military judge so declares

• RCM 911 –Assembly

• The military judge shall announce the assembly of the court-martial

Voir Dire – RCM 912Voir Dire – RCM 912

Goals of Voir DireGoals of Voir Dire

• Obtain information for the intelligent exercise of challenges

• Introduce counsel and accused and educate members about the facts/theory of the case

ChallengesChallenges

• Causal challenges (unlimited) based on actual or implied bias (or, if all else fails, the liberal grant rule)

• Perempory challenges (only one)

• The entire process is controlled by the military judge through two stages – group and individual voir dire

Case on the MeritsCase on the MeritsOpening StatementsOpening Statements

Opening StatementsOpening Statements

• Member’s first opportunity to hear the story of the alleged crime

• Put victim’s story before the court and outline theory of case

• Build rapport with the panel

Witness TestimonyWitness Testimony

Direct Examination ObjectivesDirect Examination Objectives

• Elicit witness observations/activities so the trier of fact understands, accepts and remembers the testimony

• Lay a foundation for admission of documentary, demonstrative or physical evidence

Direct Examination FocusDirect Examination Focus

• The trier of fact’s focus (military judge or panel) should always be on the witness

• The technique is single-fact, non-leading, open-ended questions

-Allows witness to tell story

-Minimizes presence of the lawyer

Effective Direct ExaminationsEffective Direct Examinations

• Brief

• Simple language/vary pace

• Elicit descriptive narratives

• Logically organized (chronology)

• Use of exhibits (panel friendly)

• Practice with witness in courtroom

• Practice again

Common Problems on DirectCommon Problems on Direct

• The witness who forgets – fear not!

-Recollection refreshed

-Recollection recorded

-Leading questions

-Recess

““Taking the Sting Out of Cross”Taking the Sting Out of Cross”

• Consider volunteering weaknesses

• For example, if the victim was drinking, elicit that fact on direct to “take the sting out of cross”

Direct Examination – Where did the Direct Examination – Where did the Lawyer Go?Lawyer Go?

• Remember, the focus is on YOU

• Practice physically turning toward the panel to give your answer

• You don’t need to rely on a lawyer—YOU are the witness with first-hand information known only by you. YOU are at the helm!

Why are Panel Members Asking Me Why are Panel Members Asking Me Questions?Questions?

• In military court, the panel members may ask questions of witnesses

• Civilian juries are called juries because they do not actively participate in questioning witnesses

• A panel queries any and all witnesses

How Are Questions Asked?How Are Questions Asked?

• Members write questions on paper• The judge will ask if there are questions

from the members; questions are passed to bailiff and onto military judge for review

• Counsel review and note objections• Judge rules on objections and reads the

question to the witness

Cross-ExaminationCross-ExaminationSelective Attacks on a Specific StorySelective Attacks on a Specific Story

Purpose of Cross-ExaminationPurpose of Cross-Examination

• Introduce a new fact

• Weaken or highlight a fact

• Weaken or strengthen the credibility of a witness

Leading Questions OnlyLeading Questions Only

• Leading questions gives the lawyer control

• Leading questions declare the answer:

Nonleading: Do you like to drink?

Better: You like to drink?

Best: You drink? You like it?

Cross-Examination WarningsCross-Examination Warnings

• Don’t try to outwit the lawyer• If you feel a need to explain your

answer, do• Don’t be bullied into yes or no• Don’t be afraid of silence; wait for the

next question• Be firm, polite but not sarcastic• If you don’t know, say so

Findings ArgumentFindings Argument

• RCM 919

• After the closing of evidence, trial counsel shall be permitted to open the argument. The defense shall be permitted to reply

Sentencing CaseSentencing Case

• Should the trial counsel secure a conviction, the trial proceeds immediately into the sentencing phase

• Witnesses are called to testify regarding matters in aggravation

• Counsel close with argument• Trial counsel may recommend a specific

lawful sentence

Courtroom ProcedureCourtroom Procedure

• After you are sworn, the Trial Counsel will conduct a DIRECT EXAMINATION (asking you who, what, where, when, why types of non-leading questions)

• Defense Counsel may then conduct a CROSS-EXAMINATION where leading questions are proper and might feel hostile

Courtroom ProcedureCourtroom Procedure

• Trial Counsel may RE-DIRECT

• Defense Counsel may RE-CROSS

• Finally, if this Court-Martial is a Panel case, the Panel Members may ask questions

Confidence-Builders for TestifyingConfidence-Builders for Testifying

• Practice your testimony with the TC

• Meet the Defense Counsel before you take the stand

• See the courtroom before the trial

• Practice your testimony in the courtroom under life-like conditions

Rules for Witnesses in CourtRules for Witnesses in Court

• Stand to take the oath• Dress neatly and professionally• Do not carry notes, purses or weapons

into the courtroom• Don’t memorize – testify from memory• Answer only the question asked• Correct incorrect statements

immediately

Rules for Witnesses in CourtRules for Witnesses in Court

• Be silent if the judge interrupts or if a lawyer objects

• Explain or clarify answers, but don’t volunteer information

• If you don’t understand a question, ask for clarification

• Stick to the facts – don’t exaggerate• If you don’t remember, say so

ConclusionConclusion

• Know your trial counsel

• Cooperate with defense counsel

• If you are identified as a witness, make sure you practice with the attorneys before trial

QUESTIONS???QUESTIONS???