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Military Law – Week 7 Jay Canham

Military Law – Week 7 Jay Canham. Unlawful Command Influence. Unlawful Command Influence. Definition : The impermissible involvement by the Convening Authority or command representatives in the military justice process .

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Military Law – Week 7 Jay Canham

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  1. Military Law – Week 7Jay Canham Unlawful Command Influence

  2. Unlawful Command Influence Definition: The impermissible involvement by the Convening Authority or command representatives in the military justice process. • If unlawful Command Influence exists, the findings and sentence of a court may be invalidated.

  3. Unlawful Command Influence must not exist • Military Justice is the fair and impartialevaluation of probative facts by a judge or court members; and • Nothing but legal and competentevidence presented in court can be allowed to influence the judge or court members.

  4. Preventing Unlawful Command Influence: Statutory Prohibitions • Statutory Guidelines: • The Command may not interfere with the duties of: • The Military Judge, Court Members and Trial Counsel & Defense Counsel; • The impartiality of the judicial system must be maintained: • Independent Judiciary; • Independent Defense Counsel Chain of Command.

  5. Unlawful Command Influence • Looking for unlawful Command Relationship • Type of Contact: • What was said or written: Was it informational or directory? Concern regulations, CO Memorandums or lecture? • Who made the contact: MJ, Counsel, SJA, CA, TC or higher Authority? • Who wascontacted: Only court-members, Officers of the command, Military Judge?

  6. Unlawful Command Influence • Looking for unlawful Command Relationship • The timing of the contact: Immediately before, during or after a trial…or was it unrelated to the trial? • Prejudice to the Accused: Was there a reasonable likelihood of prejudice to the accused at his trial?

  7. Unlawful Command Influence Problems Areas in Command Relationship • General Informational Lectures/Policy directives given to future witnesses/members! • Command contact of defense witnesses! • Communication with the Military Judge!

  8. A Pretrial Agreement This is a written agreement between the accused and the Convening Authority whereby each agrees to take or refrain from taking certain acts regarding the trial by court-martial.

  9. Characteristics of the Pretrial Agreement • Negotiations: Normally between counsel, can be initiated by anyone. • Acceptance of the Agreement: At the discretion of the Convening Authority (CA). • Withdrawal from the agreement: • By the Accused: At any time! • By the CA: At any time prior to the accused acting in reliance on the agreement. • Upon the Accused failing to adhere to the terms • If the judge or court sets aside the pleas or findings.

  10. Terms of a pretrial agreement • Permissible terms: • Waiver of the Article 32 Investigation and/or a jury trial. • Waiver of objections to government documents. • Impermissible terms: • Waiver of right to counsel or Due Process protections; • Waiver of right to challenge the government in the areas of: • Speedy Trial, Jurisdiction, Unlawful Command Influence and • Appellate Review.

  11. Military Law – Week 7Jay Canham Unlawful Command Influence

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