Military Law – Week 7 Jay Canham 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.

Unlawful Command Influence must not exist  Military Justice is the fair and impartial evaluation of probative facts by a judge or court members; and  Nothing but legal and competent evidence presented in court can be allowed to influence the judge or court members.

Preventing Unlawful Command Influence: Statutory Prohibitions 1)Statutory Guidelines: a.The Command may not interfere with the duties of:  The Military Judge, Court Members and Trial Counsel & Defense Counsel; b.The impartiality of the judicial system must be maintained:  Independent Judiciary;  Independent Defense Counsel Chain of Command.

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 was contacted: Only court-members, Officers of the command, Military Judge?

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?

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!

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.

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.

Terms of a pretrial agreement  Permissible terms: 1)Waiver of the Article 32 Investigation and/or a jury trial. 2)Waiver of objections to government documents.  Impermissible terms: 1)Waiver of right to counsel or Due Process protections; 2)Waiver of right to challenge the government in the areas of:  Speedy Trial, Jurisdiction, Unlawful Command Influence and  Appellate Review.

Military Law – Week 7 Jay Canham Unlawful Command Influence