INDEPTH: FRIENDLY FIRE
The friendly fire hearing
By Robin Rowland, CBC News Online | Updated October 22, 2003
The American military justice system is designed with three basic aims: to provide the flexibility needed in military operations, flexibility not found in the civilian justice system; to reflect the United States Constitution and Bill of Rights; and to reflect the general aims of the American criminal justice system.
Uniform Code of Military Justice: The Uniform Code of Military Justice (UCMJ) is roughly the U.S. military equivalent of the Criminal Code of Canada. The Canadian military equivalent is the Code of Service Discipline. The UCMJ covers both the kind of criminal offences found in civilian life, such as assault, indecent assault, drug use or larceny, as well as military offences such as dereliction of duty.
Article 32 Hearing: An Article 32 Hearing is similar to a preliminary hearing in Canada. The U.S. Air Force says: "An Article 32 hearing affords the accused an opportunity to see the evidence against him and present any information he deems important for consideration. The accused has the right to be present throughout the hearing, to be represented by counsel, and to cross-examine witnesses against him and present witnesses on his own."
It is held before an investigating officer, the equivalent of a judge. At the end of the hearing, the investigating officer makes a recommendation for disposition of the case. The recommendation is made to the convening authority, senior officers who ordered the hearing. The recommendation from the investigating officer is not necessarily binding on the higher authority.
General Court Martial: The General Court Martial is the highest level of trial in the U.S. military system. An accused has the choice of trial before a military judge alone or a military judge and a panel of no fewer than five members. The trial is somewhat similar to a civilian trial in the U.S. with some procedural differences. The accused must be found guilty beyond a reasonable doubt. If the accused is convicted, the panel then holds a sentencing hearing.
The convening authority then reviews the conviction and sentence. The officer has the choice of approving the sentence, mitigating (lessening) the sentence or changing the nature of the sentence, as long the new sentence is not more severe than the one recommended by the court martial panel.
The accused may be sentenced to a punitive discharge, which could be a bad-conduct discharge, dishonourable discharge or dismissal from the service. Or the accused could be given a jail sentence. If there is a recommendation for a discharge or a sentence longer than one year, the trial is reviewed by the Department of Defense Court of Criminal Appeals, military judges who review the finding and sentence. The accused can then appeal to the Court of Appeals of the Armed Forces, which consists of five civilian judges, or all the way to the U.S. Supreme Court.
(Other U.S. hearings are a summary court martial, used for minor offenses by enlisted personnel, and a special court martial, an intermediate-level trial before a judge alone or a panel of three members.)
Judge Advocate: In the American system, a judge advocate is the name for a military lawyer. A prosecutor is called a government representative, the defence are called defence counsel and may be military lawyers provided to the accused or outside civilian lawyers hired by the accused at their own expense.
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