La. Admin. Code tit. 41 § II-915
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.]
La. Admin. Code tit. 41, § II-915