Topic: Summary Trial Question & Discussion

[greencycle]

I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.

I checked the statistics on summary trials. There is a 97% conviction rate. With such a hefty conviction rate, I am wondering if the summary trial system is in fact fair.

In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?

- mod edit to title to better reflect newer drift of thread -

[CDN Aviator]

I have lengthy experience with the ST process.......its not a bad system.

[ModlrMike]

The trial system is fair. When I was in a position to lay charges, I was frequently reminded not to lay a charge that had little chance of success at trial. One of the JAG's duties is to ensure that the process runs accordingly. Bad cases are dealt with through other means.

I was also told that if you're guilty, and likely to be found so, then summary trial. If you're not guilty, but unlikely to be found so, then court martial. The main point being that ST has limited powers of punishment, a CM you can appeal to the top court. A CM also has to conform to much higher threshold of guilt and rules of evidence.

[Technoviking]

In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?

Yes.  It it quite capable of determining if the accused is guilty.

[Eye In The Sky]

However, if you are found guilty at the CM, the powers of punishment are higher than that of a Presiding Officer at a ST.

Having been 'the accused' before, a witness, and the one who recommended charges on more than 1 occassion, I think the ST portion of the military justice system does the exact job it is supposed to do.   I didn't think that when I was 'the accused' of course but...hey, I was just a kid.

Its a system, and like all systems, its not perfect but it works.  All your statistic indicates is that 97% of the charges that go to ST are determined to have been "acussed is guilty".  That doesn't account for the DIs that happen that the unit, ULA, JAG, etc decide to not proceed with, or handle thru other ways (extras, defaulters/PUPS/BIRDS, etc) or thru Admin measures (Remedial Measures, etc).

IIRC, a minor charge with a fine of less than X amount of dollars comes off your Coduct Sheet after X amount of years (or mine all did).  However, something like C & P stays on your Pers File forever.  Sometimes a ST is better in the long run than a RW or C & P.  Depends on the situation.

[CDN Aviator]

Having a fine over $500 left on your conduct sheet isn't bad either.......makes you ineligible for the QDJM 

[Eye In The Sky]

But why wouldn't you want one of those?   

[Shamrock]

IIRC, a minor charge with a fine of less than X amount of dollars comes off your Coduct Sheet after X amount of years (or mine all did).  However, something like C & P stays on your Pers File forever.  Sometimes a ST is better in the long run than a RW or C & P.  Depends on the situation.

A finding of guilty does not preclude administrative action.

[Eye In The Sky]

True that, but I wasn't saying you can't be subject to both Admin and Disciplinary from the same incident, just pointing out that over the course of your career, a ST finding of guilty has the potential to 'go away', whereas a RM stays on your pers file forever.  10 years later, if you have the same conduct/performance pop up, and they look at your file and go "hey, Bloggins had an issue back in year XX".

 

[Teflon]

I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.

I checked the statistics on summary trials. There is a 97% conviction rate. With such a hefty conviction rate, I am wondering if the summary trial system is in fact fair.

In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?

My only question is: Are you guilty? ie: did you do it?

[CountDC]

my thought too Teflon.

[ArmyVern]

My only question is: Are you guilty? ie: did you do it?

I'd strongly recommend that he/she not answer that question here ... 


Now, from a CSM standpoint, I'd never draft the RDP up, nor recommend charges be laid, if I didn't think the outcome would be "guilty"; and, I know that other CSMs think the exact same way --- it's a lot of admin and paperwork that is better spent should our UD investigation deem them not proceedable. In essence, the high volume of "guilty" outcomes in the ST process. If our investigation showed the possibility of "not guilty" party, it wouldn't be RDP'd in the first place in 100% of those cases.

[Teflon]

I'd strongly recommend that he/she not answer that question here ... 

AWWW, you're no fun Vern!!  *taking off my "swift Justice" boots and putting away my hanging rope*

[ArmyVern]

I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.

I checked the statistics on summary trials. There is a 97% conviction rate. With such a hefty conviction rate, I am wondering if the summary trial system is in fact fair.

In your experience, is the summary trial system capable of distinguishing the innocent from the guilty?

Do you have an Assisting Officer?

[Eye In The Sky]

I am facing an NDA charge. A legal advisor has told me that I have a good chance of being found innocent at a full-fledged court martial. Therefore, I elected for such. However, I am reconsidering, given the lengthy time to trial.

Just wanted to add the timeline for changing election from CM to ST, not sure where you are in the process yet, but this is something to keep in mind.

An accused who has elected to be tried by court martial has the right to withdraw that election and
have the matter tried by summary trial at any time prior to the DMP preferring the charge to be tried by
court martial (QR&O 108.17(5)(a)).

After the DMP has preferred the charge to be tried by court martial, the accused may, with the consent
of the DMP, withdraw that election and have the matter tried by summary trial at any time prior to the
commencement of the court martial (QR&O 108.17(5)(b)).

[Teeps74]

I'd strongly recommend that he/she not answer that question here ... 


Now, from a CSM standpoint, I'd never draft the RDP up, nor recommend charges be laid, if I didn't think the outcome would be "guilty"; and, I know that other CSMs think the exact same way --- it's a lot of admin and paperwork that is better spent should our UD investigation deem them not proceedable. In essence, the high volume of "guilty" outcomes in the ST process. If our investigation showed the possibility of "not guilty" party, it wouldn't be RDP'd in the first place in 100% of those cases.

To echo what ArmyVern has said, I have conducted several disciplinary investigations and drafted several RDPs. I do not write the RDP unless I am certain the outcome is guilty. Yes, yes, cart before the horse and all that, but remember, the summary trial process is not going to deal with major things (murder etc)... The ST process is to keep all those little things in check, like being late for work (AWOL), not keeping control of your weapon (insecure weapon or unauthorized discharge), minor cases of insubordination.

Now, I can not think of an advantage to getting rid of the summary trial process. My own opinion is that it is a process whereby the chain of command is demonstrating that it wants to retain the member. In theory, administrative processes can be run in parallel, but only in the more extreme cases from what I have seen... Get rid of the summary trial process, and the administrative process will be followed more stringently, which potentially could lead to a lot of our members being on C&P and potentially released for things like being late for work (people get fired on civi street all the time for being late for work...).

Are there flaws in the summary trial process? Well, frankly there are flaws in every process created. I can not fathom a better system for keeping minor disciplinary issues in check... The other options are far too draconian, even from a military stand point. I do not believe that a soldier who is late for work twice in a year should be placed in the administrative stream or court marshaled... But perhaps a ST and a lost weekend would drive home the point nicely.

[ArmyVern]

Just wanted to add the timeline for changing election from CM to ST, not sure where you are in the process yet, but this is something to keep in mind.

An accused who has elected to be tried by court martial has the right to withdraw that election and
have the matter tried by summary trial at any time prior to the DMP preferring the charge to be tried by
court martial (QR&O 108.17(5)(a)).

After the DMP has preferred the charge to be tried by court martial, the accused may, with the consent
of the DMP, withdraw that election and have the matter tried by summary trial at any time prior to the
commencement of the court martial (QR&O 108.17(5)(b)).

The accused really needs to get together with their AO. Really.

[Eye In The Sky]

The accused really needs to get together with their AO. Really.

 
Agree 100% and I hope the AO is experienced and switched-on.  Unfortunately, that is not always the case.

[recceguy]

Let's just leave this alone for now, folks. It's an ongoing investigation\ case. If the OP has any other questions, he'll ask.

Milnet.ca Staff

[greencycle]

I want to thank you guys for all the helpful advice. 

I will be making my decision with a lot more understanding.

[MCG]

... I elected for such. However, I am reconsidering, given the lengthy time to trial.

If your election has already reached the prosecutor, it is too late to change your mind.

[CDN Aviator]

If your election has already reached the prosecutor, it is too late to change your mind.

After the DMP has preferred the charge to be tried by court martial, the accused may, with the consent
of the DMP, withdraw that election and have the matter tried by summary trial at any time prior to the
commencement of the court martial (QR&O 108.17(5)(b)).

[MCG]

Despite what you've bolded, the paragraph that you omitted from your quote clearly states that the right to withdrawal the election does not exit once the prosecutor has done his/her thing to launch it.  I've not seen a prosecutor acquiesce because someone has realized they are about to get hooped for a stupid decision when having an election.

[CDN Aviator]

  I've not seen a prosecutor acquiesce because someone has realized they are about to get hooped for a stupid decision when having an election.

That it is unlikely does not equate to being impossible. The first paragraph says that the member can withdraw his election prior to DMP preferring the charge(s). The second paragraph states that after DMP has preferred the charge(s) the member can withdraw his election but it requires the consent of DMP.

Thus, it is not impossible to change your mind once the prosecutor has the case, as long as the CM has not begun. That you have never seen it happen does not cause it to be impossible and does not invalidate the regulations.

[Simian Turner]

There is also a small number of CMs that never commence because the CF legal system representatives determines that there is insufficient evidence to proceed or it is unlikely that a determination of guilt has be returned.  Although there is a higher potential punishment, there is also a higher standard for evidence.

97% seems like a reasonable number at ST level, higher than many accused would think.  A 3% chance of Not Guilty is higher than the odds of winning the lottery.  There is only one question, "Do you fell lucky..."!

[ballz]

I personally would be basing my decision on the evidence against me, not on probabilities.

Which leads me to a question (these ST / CM things always catch my interest) for those with experience... Are you given the full-disclosure of evidence against you before you have to make a decision on ST or CM? Any comments would be appreciated.

[ModlrMike]

I believe discovery comes after the election. Until the member elects, there's no framework for the trial. That being said, the member should have a good understanding of the evidence to be introduced at trial before he makes an election.

[CDN Aviator]

As far as i can recall, i was provided with a copy of all witness statements prior to making my decision, the last time around.

Its been almost 10 years so i could be remembering wrong.

[ArmyVern]

I personally would be basing my decision on the evidence against me, not on probabilities.

Which leads me to a question (these ST / CM things always catch my interest) for those with experience... Are you given the full-disclosure of evidence against you before you have to make a decision on ST or CM? Any comments would be appreciated.

Beginning from the time your charges are read, you receive a copy of your file (the UDI, all statements etc) and  have a minimum of 24 hours to decide your election (ST/CM).

During this time, one should certainly be going over that file, discussing both ST and CM processes and the differences between the two (including powers of punishment/evidence) with the AO, legal etc.

[ArmyVern]

I believe discovery comes after the election. Until the member elects, there's no framework for the trial. That being said, the member should have a good understanding of the evidence to be introduced at trial before he makes an election.

Well, not really, but I know what you meant. Discovery comes after the charge vice the election. Member is marched in, RDP'd (charged) and then receives the file and is sent away to consult as appropriate for min 24hrs. At some point after the initial 24 hours has passed, mbr will be brought in again to make their election as to TYPE of proceeding.

[Haggis]

Well, not really, but I know what you meant. Discovery comes after the charge vice the election. Member is marched in, RDP'd (charged) and then receives the file and is sent away to consult as appropriate for min 24hrs. At some point after the initial 24 hours has passed, mbr will be brought in again to make their election as to TYPE of proceeding.

Vern is bang on.  Full; disclosure is made at the time charges are laid (i.e. the accused is given his RDP) or very shortly thereafter in order to allow him to make an informed decision about ST or CM.  The 24 hours is a minimum and the accused can reasonalbly request more time.  In the Class A Reserve world, "24" hours" usually means about a week.

One key difference to remember between ST and CM is that at an ST you will be asked if you "admit to the particulars" and not to plead guilty/not guilty.  What you are, in fact doing is admitting that the statement of offence as written on the RDP is factually correct.  At that point, the presiding officer can find you guilty/not guilty - without another word being said  - but likely based your admission, coupled with the evidence presented for/against you (witness statements, your statement, AO's submission etc.).