My Investigation Recently Closed, Now What?
Investigations often take a long time, and until that investigation closes, there is limited information that will be shared. Once an investigation actually closes, the process tends to move more quickly. When the investigation closes, the report of investigation (ROI) or findings from the investigation are sent up the chain of command for commanders and JAGs to decide the course of action. This process can take days, weeks, and sometimes even longer if there is a need to reopen the investigation or talk to more witnesses.
Once a decision is made through the chain of command we are typically notified about the direction the case will go and we start preparing with our client to respond to that action. Once that action starts, that really the best time for us to start making a big difference in the outcome of the action.
Can I See The Evidence Against Me?
You have an absolute right to see the evidence against you if your case goes to trial. The right to evidence at this stage is called “discovery.” Not only do you have a right to the evidence against you, you also have a right, through your attorneys, to request the Government produce any evidence in the control of the Government that would be helpful to your case.
In most administrative actions like Article 15/NJP, administrative discharge, and other similar actions, you have a right to the evidence that will be considered by the commander making the decision in your case. We often have to push hard and fight with the commanders and JAGs to get access to helpful evidence, but that’s the difference between an aggressive lawyer, and one that is willing to just fall in line with the system.
Finally, prior to action being taken against you, you typically do not have the right to access the evidence against you. Certainly, during the investigation stage, we rarely get access to evidence. As frustrating as that may be, it is lawful for investigators to keep their evidence close-hold until action is taken. Even a President doesn’t have the right to access the evidence against him in an on-going investigation he has faced during the majority of his presidency.
What Is The Process And My Rights At Preferral?
“Preferral” is a formal meeting with your commander in which you receive the first version of the charges against you. The process is a one-way conversation from the commander to the accused member. As soon as the formal process is over the client will be free to call us and discuss the details of what happened.
The exact process is always a little different, but here’s what you can expect. The accused person will be brought to their commander’s office. They will be told to formally report into the office and to stand at attention. The commander may put the member at ease or keep them at attention. At that time, the commander will read a script which includes the formal reading of the charges. There is a lot of technical legal language and there is no concern if the member cannot remember what was said because they will get the charge sheet as soon as they leave the office. Once the reading is done, the member will be dismissed by the commander and will be free to leave unless they are already in a pretrial confinement status.
There is nothing that happens at preferral that the client needs to do, but it is the beginning of the criminal process and is a key time to make the decision about hiring an attorney.
What Can I Expect If Charges Were Preferred Against Me?
After charges are preferred the formal process of a court-martial begins. After preferral, the charges must actually be “referred” to a court-martial by the commandeering officer that is the “convening authority.” They are called the convening authority because they are the ones with the authority to convene a court-martial.
If the case is a “General Court-Martial,” which is the equivalent of a felony trial, you are entitled to an Article 32 hearing before a convening authority is permitted to refer the case to trial. An Article 32 is a hearing in which the evidence is presented to a neutral judge advocate to determine if the evidence meets the low standard of “probable cause.” An Article 32 will be ordered within a couple of weeks of preferral, and then several weeks after the Article 32 would be the decision on whether the case is going forward to trial or will be dismissed.
If the case is a “General Court-Martial,” the case will be referred within a few days, maybe a week or two after referral. Once referral occurs, your case will really start moving. If you haven’t hired a civilian by the time referral occurs, it’s definitely time to make that decision.
For more information on Aftermath Of An Ongoing Investigation, an initial consultation is your next best step.
