Convening a Court-Martial
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A court-martial is convened by a
Commanding Officer who is known as the
Convening Authority.
Can not delegate the authority.
Authority is in the position of Commanding
Officer
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A superior may withhold a subordinate’s
authority to convene a Court-Martial
Regulatory Restrictions: National Security
cases & where civilians have already
exercised jurisdiction
“The Accuser Concept”
The loss of Convening Authority because:
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CA has made a prior determination on guilt
or innocence; or
CA has a personal interest in the case; or
Takes an active role in the prosecution of the
case; or
The CA is the victim in the case or a key
witness.
The military justice system has recognized the
Constitutional protections afforded individuals
while allowing the Commander to maintain
good order and discipline. This balance of
competing interests allows the recognition of
due process while not losing sight of mission
accomplishment by a military unit. The end
result is a flexible system which meets the
operational demands of the Commander.
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Confinement:
Physical restraint of a person
in a formal Brig.
Arrest:
Moral restraint of a person by
delivering an order to him to remain within a
certain designated area.
Restriction in Lieu of Arrest: Moral restraint
imposed by oral or written order to an
accused, directing him to specified limits.
Conditions on liberty: Moral restraint
imposed by orders directing a person to do,
or refrain from doing, specified acts.
Imposed by the Commanding Officer, who is
not limited by any probable cause requirement,
but must consider Due Process rights:
 Dictated by circumstances and not used as
punishment; and
 Such action, being only interim in nature, is
utilized to accomplish a specific purpose; and
 Must be subject to frequent review.
Valid Reasons a CO may restrain a servicemember:
 Operational or other military purposes
independent of military justice, but necessary
for mission accomplishment; or
 Medical reasons; or
 To maintain good order and discipline; or
 To protect the accused from hostile act.
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On Civilians and Officers: Only the
Commanding Officer to whose authority the
civilian or officer is subject may order pretrial
restraint. This authority may not be
delegated.
On Enlisted Persons: Any Commissioned
Officer may order pretrial restraint of any
enlisted person. A Commanding Officer may
delegate this authority.
Legal Basis for pre-trial restraint is found in two
areas:
 The Constitution: Outlines the requirement
for probable cause; and
 The Uniform Code of Military Justice (UCMJ):
The statutory authority.
Probable cause requires that:
1) Reasonable grounds must exist for believing
that an offense prosecuted by court-martial
was committed; and
2) The person sought to be restrained
committed it; and
3) The person imposing pretrial restraint must
believe the degree of restraint imposed is
required by the circumstances.
“…required by the circumstances…”
1) Accused will not appear for trial; or
2) The Accused will continue to engage in further
serious criminal misconduct and
3) Lesser forms of restraint are inadequate.
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Notice: Brig must submit a report to the
accused’s CO within 24 hours of the initiation
of pretrial confinement.
Decision: Not later than 72 hours after an
accused has been ordered in to confinement,
the CO of the accused must decide whether
confinement will continue.
If a CO approves the continuance of confinement,
he must submit to the Initial Review Officer a
written memorandum stating the following reasons
for continued confinement:
1) There exists a reasonable belief (probable
cause) that a crime has been committed and the
accused is the one who committed that crime;
and
2) It is foreseeable that the accused will not appear
for trial or
3) The Accused will continue to engage in further
serious criminal misconduct and that lesser
forms of restraint are inadequate.
The Supreme Court insisted that there be a
judicial determination of the need for continued
pretrial confinement within the first 48 hours of
incarceration in order to meet the demands of
the Constitution.
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IRO must make an independent decision of
probable cause and necessity for
confinement.
Not a review of the CO’s decision to confine
for an abuse of discretion.
The IRO Hearing must be made within 7 days
of the accused being placed in pretrial
confinement.
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First, the commanding officer must be informed of
the accused’s incarceration within 24 hours of his
confinement.
Second, the CO must, within 72 hours, make a
determination as to whether confinement will
continue and create the CO’s memo.
Third, the IRO must hold a hearing to decide whether
confinement is appropriate within 7 days of
incarceration or within 10 days for good cause.
Bottom Line: 3-step process is consistent with the
spirit of County of Riverside v. McLaughlin and strict
adherence to the 48-hour rule is unnecessary.
Informal hearing with:
 the Accused and his Attorney; and
 Command representatives; and
 Law enforcement personnel
 The rules of evidence do not apply; and
 Standard of proof for confinement applied by
the IRO is by a preponderance of the evidence
(more likely than not or 51% sure).
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The accused may request a review by the
Military Judge after referral of charges.
At a later date, the IRO may, on his/her own
motion, review the need for continued
confinement.
The command and/or the accused may
request another review by the IRO regarding
his confinement decision.
Who may Order Release of the Accused from
Pretrial Confinement:
1) The IRO may order the accused released
from pretrial confinement; or
2) A Military Judge, upon request by the
accused; or
3) The CO who ordered confinement may
reconsider his decision and release the
accused.
Rule: A person held for trial may not be
subjected to punishment or penalty.
 A judge will determine if the conditions of
pre-trial confinement are related to normal
command and control measures and is not
distinctively punishment…
Or
…a means to “stigmatize” the accused.
The bottom line is that unlawful pretrial
punishment will be found where there is
avoidable stigmatization.
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Remedy for Unlawful Pretrial Confinement:
 One day credit for each day of illegal
confinement;
 Applied in addition to any other credit the
accused may be entitled to as a result of the
lawful pretrial confinement served.
 Additional relief may be bestowed for
multiple rule violations or overly harsh
confinement conditions.
Assume an accused’s sentence includes 90 days
confinement and he has spent 30 days in pretrial
confinement on the day of his sentencing:
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If the pretrial confinement is lawful, accused serves
another 60 days = (He’ll receive 30 days credit
towards his sentence which is normal pretrial credit)
If the pretrial confinement is unlawful, accused will
only serve another 30 days = (He’ll receive 30 days
normal credit plus 30 days for illegal confinement
credit, to be taken off his 90 day sentence)
If the pretrial confinement is so harsh as to be
deemed unlawful punishment …it’s possible the
accused will get 3:1 credit and serve no time further
from the date of the sentencing!
Over the years, the military justice system has created a
set of rules which allows the Commander to use pretrial
restraint as a force multiplier. This system has
developed via judicial decisions and the creation of
courtroom procedures which recognize the
constitutional protections afforded individuals while
allowing the commander to maintain good order and
discipline.
This balance of competing interests allows the
recognition of due process while not losing sight of
mission accomplishment by a military unit. The end
result is a flexible system of justice which can meet the
operational demands of the military commander.