Louisiana Administrative Code › Title 41 - MILITARY FORCES OF THE STATE › Part II - Military Justice › Chapter 9 - Complaints Under Article 138, LCMJ › Section II-915 - Summary Courts-Martial Guide -Appendix

Current through Register Vol. 50, No. 6, June 20, 2024
ADMINISTRATION OF MILITARY JUSTICE
SUMMARY COURTS-MARTIAL GUIDE
Preliminary Proceedings
Identity of SCM Officer
SCM:
I am _________________________________________ have been
				  detailed to conduct a summary court-martial by Summary Court-Martial Convening
				  Order Number __________, Headquarters, _________________, dated
				  ___________________.
Referral of charges to trial
SCM:
Charges against you have been referred to me for trial by
				  summary court-martial___________________________,
				  Commander,_______________________________________ on
				  _____________________.
Note 1. Hand copy of charge sheet to the accused.
I suggest that you keep this copy of the charge sheet and
				  refer to it during the trial. The charges are signed by
				  ________________________________, a person subject to the Louisiana Code of
				  Military Justice, as accuser, and are properly sworn to before a commissioned
				  officer of the armed forces authorized to administer oaths. The charges allege,
				  in general,
Violation of Article________, _______________________
_______________________________________________
_______________________________________________
Violation of Article________, _______________________
_______________________________________________
_______________________________________________
Violation of Article________, _______________________
_______________________________________________
_______________________________________________
Violation of Article________, _______________________
_______________________________________________
_______________________________________________
I am now going to tell you about certain rights you have in
				  this trial. You should carefully consider each explanation because you will
				  soon have to decide whether to object to trial by summary court-martial. Until
				  I have completed my explanation, do not say anything except to answer the
				  specific questions which I ask you. Do you understand that?
ACCUSED:
No or Yes, Sir.
Duties of SCM
SCM:
As summary court-martial officer, it is my duty to obtain and
				  examine all the evidence concerning any offense(s) to which you plead not
				  guilty, and to thoroughly and impartially inquire into both sides of the
				  matter. I will call witnesses for the prosecution and question them, and I will
				  help you in cross-examining those witnesses. I will help you obtain evidence
				  and present the defense. This means that one of my duties is to help you
				  present your side of the case. You may also represent yourself, and if you do,
				  it is my duty to help you. You are presumed to be innocent until your guilt has
				  been proved by legal and competent evidence beyond a reasonable doubt. If you
				  are found guilty of an offense, it is also my duty to consider matters which
				  might affect the sentence, and then to adjudge an appropriate sentence. Do you
				  understand that?
ACC:
No or Yes, Sir.
Right to object to SCM
SCM:
You have the absolute right to object to trial by summary
				  court-martial.
If you object the appropriate authority will decide how to
				  dispose of the case. The charges may be referred to a special or general
				  court-martial, or they may be dismissed, or the offenses charged may be
				  disposed of by nonjudicial punishment [if not previously offered and refused]
				  or by the imposition of non-punitive administrative measures. [See R.C.M.
				  306.]
Do you understand that?
ACC:
No or Yes, Sir.
Right to inspect allied papers and personal records
SCM:
You may inspect the allied papers and personnel
				  records.
Hand those documents which are available to the accused for
				  examination in your presence. You may have time to examine these if you
				  wish.
Witnesses and other evidence for the government
SCM:
The following witnesses will probably appear and testify
				  against you:
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
The following documents and physical evidence will probably
				  be introduced:
__________________________________________________
__________________________________________________
__________________________________________________
__________________________________________________
Right to cross-examine
After these witnesses have testified in response to my
				  questions, you may cross-examine them. If you prefer, I will do this for you
				  after you inform me of the matters about which you want the witness to be
				  questioned.
Do you understand that?
ACC:
No or Yes, Sir.
Right to present evidence
SCM:
You also have the right to call witnesses and present other
				  evidence.
This evidence may concern any or all of the charges. (I have
				  arranged to have the following witnesses for you present at the trial.) I will
				  arrange for the attendance of other witnesses and the production of other
				  evidence requested by you. I will help you in any way possible. Do you
				  understand that?
ACC:
No or Yes, Sir.
Evidence to be considered
SCM:
In deciding this case, I will consider only evidence
				  introduced during the trial. I will not consider any other information,
				  including any statements you have made to me, which is not introduced in
				  accordance with the Military Rules of Evidence during the court-martial. Do you
				  understand that?
ACC:
No or Yes, Sir.
Right to remain silent
SCM:
You have the absolute right during this trial to choose not
				  to testify and to say nothing at all about the offense(s) with which you are
				  charged. If you do not testify, I will not hold it against you in any way. I
				  will not consider it as an admission that you are guilty. If you remain silent,
				  I am not permitted to question you about the offense(s).
Right to testify concerning the offense(s)
However, if you choose, you may be sworn and testify as a
				  witness concerning the offense(s) charged against you. If you do that, I will
				  consider your testimony just like the testimony of any other witness.
SCM:
If you decide to testify, you may limit your testimony to any
				  particular offense charged against you and not testify concerning any other
				  offense(s) charged against you. If you do this, I may question you about the
				  whole subject of the offense about which you testify, but I may not question
				  you about any offense(s) concerning which you do not testify. Do you understand
				  that?
ACC:
No or Yes, Sir.
Right to testify, remain silent make an unsworn statement in
				  extenuation and mitigation
SCM:
In addition, if you are found guilty of an offense, you will
				  have the right to testify under oath concerning matters regarding an
				  appropriate sentence. You may, however, remain silent, and I will not hold your
				  silence against you in any way. You may, if you wish, make an unsworn statement
				  about such matters. This statement may be oral, in writing, or both. If you
				  testify, I may cross-examine you. If you make an unsworn statement, however, I
				  am not permitted to question you about it, but I may receive evidence to
				  contradict anything contained in the statement. Do you understand that?
ACC:
No or Yes, Sir.
Maximum Punishment
SCM:
If I find you guilty (of the offense) (of any of the offenses
				  charged), the maximum sentence which I am authorized to impose is:
Confinement of not more than one week;
Reduction of enlisted personnel to the lowest grade;
A fine of not more than $100.00 or, in lieu thereof,
				  confinement for not more than one day for each dollar of the authorized fine or
				  combination thereof;
Forfeiture of up to one month pay and allowances;
A reprimand;
Any combination of these punishments.
SCM:
Do you understand the maximum punishment which this
				  court-martial is authorized to adjudge?
ACC:
No or Yes, Sir.
Plea Options
SCM:
You may plead not guilty or guilty to each offense with which
				  you are charged. You have an absolute right to plead not guilty and to require
				  that your guilt be proved beyond a reasonable doubt before you can be found
				  guilty. You have the right to plead not guilty even if you believe you are
				  guilty. Do you understand that?
ACC:
No or Yes, Sir.
SCM:
If you believe you are guilty of an offense, you may, but are
				  not required to, plead guilty to that offense. If you plead guilty to an
				  offense, you are admitting that you committed that offense, and this
				  court-martial could find you guilty of that offense without hearing any
				  evidence, and could sentence you to the maximum penalty I explained to you
				  before. Do you understand that?
ACC:
No or Yes, Sir.
SCM:
Do you need more time to consider whether to object to trial
				  by summary court-martial or to prepare for trial?
ACC:
No or Yes, Sir.
SCM:
[If time is requested or otherwise appropriate.] We will
				  convene the court-martial at _____. When we convene, I will ask you whether you
				  object to trial by summary court-martial. If you do not object, I will then ask
				  for your pleas to the charge(s) and specification(s), and for you to make any
				  motions you may have.
Trial Procedure
Convene
SCM:
This summary court-martial is now in session.
Objection or consent to trial by SCM
SCM:
Do you object to trial by summary court-martial?
ACC:
No or Yes, Sir.
[Note 4. If there is an objection, adjourn the court-martial
				  and return the file to the convening authority. If the accused does not object,
				  proceed as follows. The accused may be asked to initial the notation on the
				  record of trial that the accused did or did not object to trial by summary
				  court-martial. This is not required, however.]
Reading of the charges
SCM: Look at the charge sheet. Have you read the charge(s)
				  and specification(s)?
ACC:
No or Yes, Sir.
SCM:
Do you want me to read them to you?
ACC:
No or Yes, Sir.
[If accused requests, read the charge(s) and
				  specification(s).]
Arraignment
SCM:
Before you plead to the offenses, if you have any motion to
				  dismiss (the) (any) charge or specification, or for other relief, you should
				  make it now.
ACC:
No or Yes, Sir.
[Note 5. Motions. If the accused makes a motion to dismiss or
				  to grant other relief, or such a motion is raised by the summary court-martial,
				  do not proceed with the trial until the motions have been decided. See R.C.M.
				  905-907, and R.C.M. 1304(b)(2)(c). After any motions have been disposed of and
				  if termination of the trial has not resulted, have the accused enter pleas and
				  proceed as indicated below.]
Pleas
ACC:
I plead: _____.
[Note 6. If the accused refuses to plead to any offense
				  charged, enter pleas of not guilty. If the accused refuses to enter any plea,
				  evidence must be presented to establish that the accused is the person named in
				  the specification(s) and is subject to court-martial jurisdiction. See R.C.M.
				  202, 1301(c).]
[Note 7. If the accused pleads not guilty to all offenses
				  charged, proceed to the section entitled "Procedures-Not Guilty Pleas."]
[Note 8. If the accused pleads guilty to one or more
				  offenses, proceed as follows.]
Procedures - guilty pleas
SCM
I will now explain the meaning and effect of your pleas, and
				  question you so that I can be sure you understand. Refer to the charge(s) and
				  specification(s). I will not accept your pleas of guilty unless you understand
				  their meaning and effect. You are legally and morally entitled to plead not
				  guilty even though you believe you are guilty, and to require that your guilt
				  be proved beyond a reasonable doubt. A plea of guilty is the strongest form of
				  proof known to the law. On your pleas of guilty alone, without receiving any
				  evidence, I can find you guilty of the offense(s) to which you have pleaded
				  guilty. I will not accept your pleas unless you realize that by your pleas you
				  admit every element of the offense(s) to which you have pleaded guilty, and
				  that you are pleading guilty because you really are guilty. If you are not
				  convinced that you are in fact guilty, you should not allow anything to
				  influence you to plead guilty. Do you understand that?
ACC:
No or Yes, Sir.
SCM:
Do you have any questions?
ACC:
No or Yes, Sir.
SCM:
By your pleas of guilty you give up three very important
				  rights. (You keep these rights with respect to any offense(s) to which you have
				  pleaded not guilty.) The rights which you give up when you plead guilty
				  are:
First, the right against self-incrimination. This means you
				  give up the right to say nothing at all about (this) (these) offense(s) to
				  which you have pleaded guilty. In a few minutes I will ask you questions about
				  (this) (these) offense(s), and you will have to answer my questions for me to
				  accept your pleas of guilty.
Second, the right to a trial of the facts by this
				  court-martial. This means you give up the right to have me decide whether you
				  are guilty based upon the evidence which would be presented.
Third, the right to be confronted by and to cross-examine any
				  witnesses against you. This means you give up the right to have any witnesses
				  against you appear, be sworn and testify, and to cross-examine them under
				  oath.
Do you understand these rights?
ACC:
No or Yes, Sir.
SCM:
Do you understand that by pleading guilty you give up these
				  rights?
ACC:
No or Yes, Sir.
SCM:
On your pleas of guilty alone you could be sentenced to the
				  maximum sentence allowed.
[Note 9. Re-read the appropriate sentencing section above
				  unless the summary court-martial is a rehearing or new or other trial, in which
				  case see R.C.M. 810(d).]
SCM:
Do you have any questions about the sentence which could be
				  imposed as a result of your pleas of guilty?
ACC:
No or Yes, Sir.
SCM:
Has anyone made any threat or tried in any other way to force
				  you to plead guilty?
ACC:
No or Yes, Sir.
Pretrial Agreement
SCM:
Are you pleading guilty because of any promises or
				  understandings between you and the convening authority or anyone else?
ACC:
No or Yes, Sir.
[Note 10. If the accused answers yes, the summary
				  court-martial must inquire into the terms of such promises or understandings in
				  accordance with Paragraph 7-21 of this Regulation. See also Note 27 of Appendix
				  C, (SPCM Guide) and R.C.M. 910.]
SCM:
The following elements state what would have to be proved
				  beyond a reasonable doubt before the court-martial could find you guilty if you
				  had pleaded not guilty. As I read each of these elements to you, ask yourself
				  whether each is true and whether you want to admit that each is true, and then
				  be prepared to discuss each of these elements with me when I have
				  finished.
The elements of the offense(s) which your pleas of guilty
				  admit are
Article ____________:
Article ____________:
Article ____________:
[Note 12. Read the elements of the offense(s) from the
				  appropriate punitive article in the LCMJ Annotated..]
SCM:
Do you understand each of the elements of the
				  offense(s)?
ACC:
No or Yes, Sir.
SCM:
Do you believe, and admit, that taken together these elements
				  correctly describe what you did?
ACC:
No or Yes, Sir.
[Note 13. The summary court-martial should now question the
				  accused about the circumstances of the offense(s) to which the accused has
				  pleaded guilty. The accused will be placed under oath for this purpose. See
				  oath below. The purpose of these questions is to develop the circumstances in
				  the accused's own words, so that the summary court-martial may determine
				  whether each element of the offense(s) is established.]
Oath to accused for guilty plea inquiry
SCM:
Do you (swear) (affirm) that the statements you are about to
				  make shall be the truth, the whole truth, and nothing but the truth (so help
				  you God)?
ACC:
No or Yes, Sir.
SCM:
Do you have any questions about the meaning and effect of
				  your pleas of guilty?
ACC:
No or Yes, Sir.
SCM:
Do you believe that you understand the meaning and effect of
				  your pleas of guilty?
ACC:
No or Yes, Sir.
[Note 14. Determination of Providence of Pleas of Guilty.
				  Pleas of guilty may not be accepted unless the summary court-martial finds that
				  they are made voluntarily and with understanding of their meaning and effect,
				  and that the accused has knowingly, intelligently, and consciously waived the
				  rights against self-incrimination, to a trial of the facts by a court-martial,
				  and to be confronted by the witnesses. Pleas of guilty may be improvident when
				  the accused makes statements at any time during the trial which indicate that
				  there may be a defense to the offense(s), or which are otherwise inconsistent
				  with an admission of guilt. If the accused makes such statements and persists
				  in them after questioning, then the summary court-martial must reject the
				  accused's guilty pleas and enter pleas of not guilty for the accused. Turn to
				  the section entitled "Procedures-Not Guilty Pleas" and continue as indicated.
				  If (the) (any of the) accused's pleas of guilty are found provident, the
				  summary court-martial should announce findings as follows.]
Acceptance of guilty pleas
SCM:
I find that the pleas of guilty are made voluntarily and with
				  understanding of their meaning and effect. I further specifically find that you
				  have knowingly, intelligently, and consciously waived your rights against
				  self-incrimination, to a trial of the facts by a court-martial, and to be
				  confronted by the witnesses against you. Accordingly, I find the pleas are
				  provident, and I accept them. However, you may ask to take back your guilty
				  pleas at any time before the sentence is announced. If you have a sound reason
				  for your request, I will grant it. Do you understand that?
ACC:
No or Yes, Sir.
[Note 15. If no pleas of not guilty remain, go to note 24. If
				  the accused has changed pleas of guilty to not guilty, if the summary
				  court-martial has entered pleas of not guilty to any charge(s) and
				  specification(s), or if the accused has pleaded not guilty to any of the
				  offenses or pleaded guilty to a lesser included offense, proceed as
				  follows.]
Procedures Not guilty pleas
Witnesses for the accused
SCM:
If there are witnesses you would like to call to testify for
				  you, give me the name, rank, and organization or address of each, and the
				  reason you think they should be here, and I will arrange to have them present
				  if their testimony would be material. Do you want to call witnesses?
ACC:
No or Yes, Sir.
Presentation of Evidence
[Note 16. The summary court-martial should estimate the
				  length of the case and arrange for the attendance of witnesses. The prosecution
				  evidence should be presented before evidence for the defense.]
Calling witnesses
SCM:
I call as a witness _____.
Witness oath
SCM:
[To the witness, both standing] Raise your right hand.
Do you swear (or affirm) that the evidence you shall give in
				  the case now in hearing shall be the truth, the whole truth, and nothing but
				  the truth,(so help you God)? [Do not use the phrase, "so help you God," if the
				  witness prefers to affirm.]
WIT:
No or Yes, Sir.
SCM:
Be seated. State your full name, rank organization, and armed
				  force ([or if a civilian witness] full name, address, and occupation.)
[Note 17. The summary court-martial should question each
				  witness concerning the alleged offense(s). After direct examination of each
				  witness, the accused must be given an opportunity to cross-examine. If the
				  accused declines to cross-examine the witness, the summary court-martial should
				  ask any questions that it feels the accused should have asked. If
				  cross-examination occurs, the summary court-martial may ask questions on
				  redirect examination and the accused may ask further questions in
				  recross-examination.]
[Note 18. After each witness has testified, instruct the
				  witness as follows.]
SCM:
Do not discuss this case with anyone except the accused,
				  counsel, or myself until after the trial is over. Should anyone else attempt to
				  discuss this case with you, refuse to do so and report the attempt to me
				  immediately. Do you understand that?
WITNESS:
YES or NO Sir
SCM:
[To the witness] You are excused.
[Note 19. Recalling witnesses. Witnesses may be recalled if
				  necessary. A witness who is recalled is still under oath and should be so
				  reminded.]
[Note 20. After all witnesses against the accused have been
				  called and any other evidence has been presented, the summary court-martial
				  will announce the following.]
SCM:
That completes the evidence against you. I will now consider
				  the evidence in your favor.
[Note 21. Presentation of Defense Case. Witnesses for the
				  accused should now be called to testify and other evidence should be presented.
				  Before the defense case is terminated the summary court-martial should ask the
				  accused if there are other matters the accused wants presented. If the accused
				  has not testified, the summary court-martial should remind the accused of the
				  right to testify or to remain silent.]
Closing argument
SCM:
I have now heard all of the evidence. You may make an
				  argument on this evidence before I decide whether you are guilty or not
				  guilty.
Deliberation and Findings
[Note 22. The court-martial should normally close for
				  deliberations. If the summary court-martial decides to close, proceed as
				  follows.]
SCM:
The court-martial is closed so that I may review the
				  evidence. Wait outside the courtroom until I recall you.
[Note 23. The summary court-martial should review the
				  evidence and applicable law. It must acquit the accused unless it is convinced
				  beyond a reasonable doubt by the evidence it has received in court in the
				  presence of the accused that each element of the alleged offense(s) has been
				  proved beyond a reasonable doubt. See R.C.M. 918. It may not consider any facts
				  which were not admitted into evidence, such as a confession or admission of the
				  accused which was excluded because it was taken in violation of M.R.E..
				  304.]
[Note 24. Announcing the findings. The summary court-martial
				  should recall the accused, who will stand before the court-martial when
				  findings are announced. All findings including any findings of guilty resulting
				  from guilty pleas, should be announced at this time. The attached Findings form
				  should be used and signed then read aloud when announcing findings.]
[Note 26. Procedure if total acquittal. If the accused has
				  been found not guilty of all charges and specifications, adjourn the
				  court-martial, excuse the accused, complete the record of trial, and return the
				  charge sheet, personnel records, allied papers, and record of trial to the
				  convening authority.]
Sentencing
[Note 27. Procedure if any findings of guilty. If the accused
				  has been found guilty of any offense, proceed as follows.]
Presentence Procedure
SCM:
I will now receive information in order to decide on an
				  appropriate sentence. Look at the information concerning you on the front page
				  of the charge sheet. Is it correct?
ACC:
No or Yes, Sir.
[Note 28. If the accused alleges that any of the information
				  is incorrect, the summary court-martial must determine whether it is correct
				  and correct the charge sheet, if necessary.]
[Note 29. Evidence from the accused's personnel records,
				  including evidence favorable to the accused, should now be received in
				  accordance with R.C.M. 1001(b)(2). These records should be shown to the
				  accused.]
SCM:
Do you know any reason why I should not consider
				  these?
ACC:
No or Yes, Sir.
[Note 30. The summary court-martial shall resolve objections
				  under R.C.M. 1002(b)(2) and the Military Rules of Evidence and then proceed as
				  follows. See also R.C.M. 1001(b)(3), (4), and (5) concerning other evidence
				  which may be introduced.]
Extenuation and mitigation
SCM:
In addition to the information already admitted which is
				  favorable to you, and which I will consider, you may call witnesses who are
				  reasonably available, you may present evidence, and you may make a statement.
				  This information may be to explain the circumstances of the offense(s),
				  including any reasons for committing the offense(s), and to lessen the
				  punishment for the offense(s) regardless of the circumstances. You may show
				  particular acts of good conduct or bravery, and evidence of your reputation in
				  the service for efficiency, fidelity, obedience, temperance, courage, or any
				  other trait desirable in a good Service member. You may call available
				  witnesses or you may use letters, affidavits, certificates of military and
				  civil officers, or other similar writings. If you introduce such matters, I may
				  receive written evidence for the purpose of contradicting the matters you
				  presented. If you want me to get some military records that you would otherwise
				  be unable to obtain, give me a list of these documents. If you intend to
				  introduce letters, affidavits, or other documents, but you do not have them,
				  tell me so that I can help you get them. Do you understand that?
ACC:
No or Yes, Sir.
Rights of accused to testify, remain silent, and make an
				  unsworn statement
SCM:
I informed you earlier of your right to testify under oath,
				  to remain silent, and to make an unsworn statement about these matters.
SCM:
Do you understand these rights?
ACC:
No or Yes, Sir.
SCM:
Do you wish to call witnesses or introduce anything in
				  writing?
ACC:
No or Yes, Sir.
[Note 31. If the accused wants the summary court-martial to
				  obtain evidence, arrange to have the evidence produced as soon as
				  practicable.]
[Note 32. The summary court-martial should now receive
				  evidence favorable to the accused. If the accused does not produce evidence,
				  the summary court-martial may do so if there are matters favorable to the
				  accused which should be presented.]
SCM:
Do you wish to testify or make an unsworn statement?
ACC:
No or Yes, Sir.
[Note 33. Questions concerning pleas of guilty. If as a
				  result of matters received on sentencing, including the accused's testimony or
				  an unsworn statement, any matter is disclosed which is inconsistent with the
				  pleas of guilty, the summary court-martial must immediately inform the accused
				  and resolve the matter.]
Argument on sentence
SCM:
You may make an argument on an appropriate sentence. Do you
				  wish to make an argument on an appropriate sentence?
ACC:
No or Yes, Sir.
[Note 34. Deliberations prior to announcing sentence. After
				  receiving all matters relevant to sentencing, the summary court-martial should
				  normally close for deliberations. If the summary court-martial decides to
				  close, proceed as follows.]
Closing the court-martial
SCM:
This court-martial is closed for determination of the
				  sentence. Wait outside the courtroom until I recall you.
[Note 35. Announcing the sentence. The summary court-martial
				  should recall the accused, who will stand before the court-martial when the
				  sentence is announced. The Attached Sentence form should be used and signed
				  then read aloud when announcing sentence.]
Announcement of sentence
SCM:
Please rise.
[Note 36. If the sentence includes confinement, advise the
				  accused as follows.]
SCM:
You have the right to request in writing that
				  ____________________________________ [name of convening authority] defer your
				  sentence to confinement. Deferment is not a form of clemency and is not the
				  same as suspension of a sentence. It merely postpones the running of a sentence
				  to confinement.
[Note 37. Whether or not the sentence includes confinement,
				  advise the accused as follows.]
SCM:
You have the right to submit in writing a petition or
				  statement to the convening authority. This statement may include any matters
				  you feel the convening authority should consider, a request for clemency, or
				  both. This statement must be submitted within 7 days, unless you request and
				  convening authority approves an extension of up to 10 days. After the convening
				  authority takes action, your case will be reviewed by a judge advocate for
				  legal error. You may suggest, in writing, legal errors for the judge advocate
				  to consider. If, after final action has been taken in your case, you believe
				  that there has been a legal error, you may request review of your case by the
				  State Judge Advocate of the Louisiana National Guard. Do you understand these
				  rights?
ACC:
No or Yes, Sir.
Adjourning the court-martial
SCM:
This court-martial is adjourned.
[Note 38. Have the Paralegal complete all forms and then the
				  SCM signs. The Paralegal will then ensure that the forms are forwarded
				  appropriately.]
AUTHORITY NOTE:
				  Promulgated in accordance with
				  R.S.
				  29:11(F).