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Arraignment

Arraignment is an important legal milestone in any criminal trial. After charges have been referred to a court-martial, arraignment is the first formal step in the court-martial process. At arraignment, an accused service member is read the charges and specifications which have been brought against them and can enter or defer pleas.

Arraignment also triggers the government to comply with certain discovery obligations, and is typically when the Military Judge orders trial milestones to govern the case. An accused has the right to be represented by military or civilian counsel at arraignment.

MJA has defended countless service members facing investigation, court-martial, and discipline for some of the most serious offenses under the UCMJ. When your career, freedom, and future are on the line, you need an experienced law firm in your corner. Contact one of our military defense lawyers today to learn more.

Arraignment Process

After charges are referred to court-martial by the Convening Authority, the accused must be arraigned. Arraignment consists of a reading of the charges and specifications to the accused during a court-martial session. The accused may waive the reading.

The arraignment is typically a very short process which lasts less than 30 minutes. While short in duration, the arraignment packs a massive legal punch and has significant consequences for the accused and the progress of their case. Topics covered at arraignment include an accused’s right to counsel, the entry or deferment of pleas, and the creation of a Trial Management Order to govern the case.

Rights to Counsel

An accused has the right to be represented by counsel throughout the court-martial process to include arraignment. At a minimum, an accused will be represented at arraignment by a detailed military defense counsel. He or she is a lawyer, certified by The Judge Advocate General as qualified to act as defense counsel and is a member of the Trial Defense Service of that military service. Detailed military defense counsel are like public defenders for the military. Their services are provided at no expense to the service member.

In addition to being represented by a detailed military defense counsel, an accused also has the right to be represented by a military counsel of their own selection, provided that the counsel they request is reasonably available. In other words, an accused has the right to request a specific person to serve as their military attorney if that person is available. If an accused is represented by military counsel of their own selection, then their detailed defense counsel would normally be excused. However, an accused could request that their detailed counsel continue to represent them, but that request would not have to be granted.

In addition to being represented by military defense counsel, an accused also has the right to be represented by a civilian counsel (like Military Justice Attorneys) at no expense to the government. Civilian counsel may represent a service member along with their military defense counsel or the service member could excuse their military counsel and be represented only by civilian counsel.

While an accused is formally notified of his right to counsel at arraignment, legal counsel should be obtained far in advance of arraignment if possible. In fact, some of the most important decisions in a case, like whether to make a statement to law enforcement or consent to a search, occur before arraignment and often before a military counsel has been detailed to your case. If you intend to hire a civilian defense attorney, it is best to do so as early as possible so that the attorney can provide legal advice throughout the investigative and court-martial process.

Entry of Pleas

After the charges are read or the reading has been waived, the accused is then allowed, but not required, to plead either guilty or not guilty to the charges, though entry of pleas often takes place at a later session of court. Once arraignment has been completed, the convening authority may not refer new charges to the same court-martial for which the accused was arraigned.

It is critical that an accused bring certain motions before pleas are entered. The defense should be asked by the military judge whether it has any motions to make before the entry of pleas. The following motions must be raised before a plea in entered:

  1. Defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing;
  2. Defenses or objections based on defects in the charges and specifications (other than any failure to show jurisdiction or to charge an offense);
  3. Motions to suppress evidence;
  4. Motions for discovery under R.C.M. 701 or for production of witnesses or evidence;
  5. Motions for severance of charges or accused; or
  6. Objections based on denial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted.

Trial Milestones

At arraignment the Military Judge will normally issue a “Pretrial Order” (PTO) or “Trial Management Order” (TMO) establishing the date of trial and other “trial milestones” that the parties are required to comply with. These trial milestones typically establish dates for: discovery requests and responses; government disclosure obligations, fact and expert witness requests and responses; motions submitted and response dates; Article 39(a) hearings; when written notice of pleas and forum are due; and submission final pretrial matters due.

Presence of the Accused

An accused must be present at the arraignment, the time of the plea, every stage of the trial including Article 39(a) sessions of courts, voir dire and challenges of members, the return of findings, presentencing proceedings, and post-trial sessions of court. Attendance at these proceedings is considered the service member’s appointed place of duty. If an accused has to travel for arraignment or any other session of court, such traveling is not for “disciplinary action” as used in the Joint Travel Regulations.

An accused’s continued presence at the trial, to include the return of the findings and even the determination of a sentence, is not required and the accused is considered to have waived the right to be present whenever, after being initially present, the accused:

(1) Is voluntarily absent after arraignment; or

(2) After being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, the accused continues to engage in conduct which justifies his exclusion from the courtroom.

Discovery

The prosecution has certain discovery obligations prior to arraignment. Military Rule of Evidence (M.R.E.) 304(d) requires the prosecution, before arraignment, to “disclose to the defense the contents of all statements, oral or written, made by the accused that are relevant to the case, known to trial counsel, and within the control of the Armed Forces, and all evidence derived from such statements, that the prosecution intends to offer against the accused.”

M.R.E. 304(d) has two components. The rule first requires the prosecution to disclose the contents of all statements made by the accused that are relevant to the case and known to the trial counsel (prosecutor). Secondly, the prosecution must disclose “all evidence” derived from such statements if the prosecution intends to offer the evidence at trial.

Protect Your Military Career and Freedom

An accused’s arraignment and entry of pleas are important trial milestones. When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys have successfully defended service members facing investigation, court-martial, and discipline for some of the most serious offenses under the UCMJ and will ensure that every avenue of defense is aggressively pursued on your behalf.  Call us today at (843) 473-3665 or contact us online for a free consultation.

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