AIR FORCE INSTRUCTION 6 JUNE Law. ADMINISTRATION OF MILITARY JUSTICE. COMPLIANCE WITH THIS PUBLICATION IS MANDATORY. Supersedes AFI , 3 October Pages: Distribution: F. This instruction implements the Uniform Code of Military Justice (UCMJ). and now may be found in AFI , Administration of Military Justice, and AFI ,. Nonjudicial Punishment, respectively. 1. Good order.
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Compliance with this Memorandum is mandatory. To the extent its directions are inconsistent with other Air Force publications, the information herein prevails, in accordance with AFIPublications and Forms Management. Current guidance in AFI ari in effect with the following changes: Change to Table of Contents Section 4A: Change to Table of Contents Section 4. Change to Table of Contents Figure 6. Change to para 1.
Ethics and Standards of Conduct. Change to para Courts-Martial. Once jurisdiction 51-2001 in accordance with R. Prior consultation with the member s reserve component chain of command through JA channels is required. If the member is no longer on active duty when the offense is discovered, the member may be involuntarily ordered to active.
In any case in which the accused is a member of the Reserve 51201 ANG, trial counsel must introduce sufficient evidence to establish in-personam jurisdiction over the accused at the time of the offense. This prohibition does not apply to ANG members. A SCM may be conducted or NJP initiated during the member s period of active duty or normal period of inactive duty training. Punishment unserved at the end of the period of active duty or normal period of inactive duty training may be carried over to subsequent periods.
If permission from a special access program office to proceed with a disciplinary or administrative action is required, then the legal office obtains a copy of the request for permission and the permission if granted.
All documents are handled in accordance with security classification. In accordance with AFIparagraph 8. Under no circumstances may the charges be referred to trial until the appropriate special access program office grants permission to proceed if such permission is required.
If such permission is required, it is generally requested before preferral and as soon as possible because of the length of time to process the request. Replace current entire Section 4A with the following: No charge or specification may be referred to a general court-martial for trial until completion of an Article 32 preliminary hearing, unless waived Preliminary Hearing Officer PHO.
This includes reserve JAGs who may be detailed to serve as a PHO while on active duty or performing inactive duty training. Article bUCMJ, authorizes reserve Judge 5-1201 to administer oaths while on active duty or performing inactive duty training.
The PHO cannot be the accuser. Whenever practicable, the PHO shall be equal to or senior in grade to military counsel detailed to represent the accused and the government at the preliminary hearing Counsel Counsel for the Government GC.
A judge advocate, not the accuser, shall serve as counsel to represent the United States. The accused has the right to be represented in his defense by military defense counsel certified under Article 27 b and sworn under Article 42 aUCMJ. The accused may also be represented by civilian defense counsel; however, civilian defense counsel must be provided at no expense to the government.
Civilian defense counsel must take an oath to perform his or her duties faithfully when representing an accused.
The PHO will administer this oath. The convening authority may approve a delay of the Article 32 Preliminary Hearing. The period of time of such delay shall be excluded when determining whether the period in R.
Prior to referral, the convening authority may delegate the authority to grant a delay to an Article 32 PHO. When a PHO has been delegated authority to grant delays, the period covered by the delay may be excluded by the convening authority from the day period under R.
The PHO has no independent authority to exclude time under R. The purpose of the Article 32 preliminary hearing is limited to an examination of those issues necessary to determine whether there is probable cause to believe an offense has been committed and whether the accused committed it.
The other limited functions of the preliminary hearing are to determine whether the convening authority has court-martial jurisdiction over the offenses s and the accused; to consider the form of the charge s ; and to recommend the disposition that should be made of the charge s.
Within five calendar days of issuance of the Article 32 appointment letter, the GC provides to the defense the following information: Charge Sheet; Article 32 appointment letter; Documents accompanying the charge sheet on which the preferral decision was based; Documents provided to the convening authority when deciding to direct the preliminary hearing; Documents the GC intends to present at the hearing; and Access to tangible objects GC intends to present at the preliminary hearing Should the GC fail to provide this information, the PHO shall note the issue in the preliminary hearing report.
Further, if the convening authority has given the PHO the authority to grant delays, the PHO may grant a reasonable delay to allow the GC to comply with the above requirements Disclosure Prior to the Preliminary Hearing. Prior to the preliminary hearing, GC shall provide to the defense afii following: Notice of any witnesses that the GC intends to call at the preliminary 511-201 Copies of or access to any written or recorded statements made by the witnesses GC intends to call at the preliminary hearing that relate to the subject matter of any charged offense; Notice of, and reasonable access to, any other evidence the GC intends to offer at the preliminary hearing; and Notice of, and reasonable access to, evidence that is within the possession or control of GC that negates fai reduces the degree of guilt of the accused for an offense charged Victim Testimony.
A victim of an offense under consideration at the preliminary hearing is not required to testify at the preliminary hearing 51-2001 to. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing.
The PHO may establish a timeline prior to the preliminary hearing by which DC shall provide to GC the names of proposed military and civilian witnesses whom the accused requests that the government produce to testify at the preliminary hearing and the requested form of the testimony Response to Defense Counsel Request for Witnesses.
Upon receipt of a request from 5-1201 DC to produce proposed military and civilian witnesses, GC shall either agree that the witness testimony is relevant, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and will seek to secure the witness s testimony for the hearing; or object to the proposed defense witness on the ground the testimony would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.
Should GC object to a witness requested by DC, DC may request, in writing, that the PHO determine whether the witness is relevant, not cumulative, and necessary based 511-201 the limited scope and purpose of the preliminary qfi Military Witness Availability. If GC does not object to the defenserequested military witness or the PHO determines that the military witness is relevant, not cumulative, and necessary, GC shall request that the commander of the military witness make that person available to provide testimony Commander Determination of Witness Availability.
The commander of the witness, at the time of the preliminary hearing, shall make a determination of whether the individual is available based on operational necessity or mission requirements. The commander s determination of whether an individual is available, as well as the means by which the individual is available, is a balancing test. The more important the testimony of the witness, the greater the difficulty, expense, delay, or effect on military operations must be to deny production of the witness.
Based on operational necessity and mission requirements, the witness s commander may authorize the witness to testify by VTC, telephone, or 5-201 means of remote testimony. Factors to be considered in making this determination include the costs of producing the witness; the timing 51-2001 the request for production of the witness; the potential delay in the proceeding that may be caused by the production of the witness; and the likelihood of significant interference with operational deployment, mission accomplishment, or essential training.
The commander s determination may be made in writing, viaor orally. The commander will also resolve any dispute among the parties on whether the witness will testify in person, by VTC, by telephone or similar means of remote testimony. If there is a dispute between the 5-201 as to the form, the commander s decision should be in writing and included in the final report.
The GC shall make arrangements for any military witness s testimony Civilian Witnesses. If GC does not object to the defense-requested civilian witness or the PHO determines the civilian witness to be relevant, not cumulative, and necessary, GC shall send a written invitation to the civilian witness to provide testimony and, if the individual agrees, the GC shall make arrangements for that witness s testimony.
If expense to the government is to be incurred, the convening authority who directed the preliminary hearing, or the convening authority s delegate, shall determine whether the witness testifies in person, by VTC, by telephone, or similar qfi of remote testimony Defense Counsel Request for Production of Evidence. The PHO may establish a timeline prior to the preliminary hearing by which DC shall provide to GC a list of evidence under the control of 51201 government and not under the control of the government that the accused requests the government produce to the defense for introduction at the preliminary hearing.
This is not a right to discovery of evidence for future consideration by the defense Response to Defense Counsel Request for Evidence. Upon receipt of a request from the DC to produce evidence for introduction at the preliminary hearing, GC shall either agree that the evidence is ai, not cumulative, and necessary for the limited scope and purpose of the preliminary hearing and will make reasonable efforts to obtain the evidence; or object to production of the evidence on the grounds that the evidence would be irrelevant, cumulative, or unnecessary based on the limited scope and purpose of the preliminary hearing.
The GC must provide this response in writing at a timeframe the PHO establishes prior to the preliminary hearing. If GC does not object to production of the defenserequested evidence, GC shall issue subpoenas duces tecum for the evidence Response to Government s Objections to Evidence. The PHO shall determine whether the evidence is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing, and if so, the GC will make reasonable efforts to obtain the evidence.
If GC s reasonable efforts are unsuccessful in obtaining the evidence, the PHO 51-20 note it in the report, to include what specific efforts were made. If the PHO determines the defense-requested evidence is relevant, not cumulative, and necessary based on the limited scope and purpose of the preliminary hearing and that the issuance of subpoenas duces tecum would not cause undue delay to the preliminary hearing, the PHO shall direct GC to issue subpoenas duces tecum for the defense-requested evidence.
Failure on the part of GC to issue subpoenas duces tecum directed by the PHO, or failure of the custodian of the evidence to answer the subpoenas duces tecum shall be noted in the report Conducting the Preliminary Hearing Recording of the Preliminary Hearing. Pursuant to Article 32 eall preliminary hearings must be recorded by a suitable recording device. The GC shall ensure the preliminary hearing is recorded by a suitable government recording device.
A suitable government back-up recording by the GC is also allowed. No other recordings of the preliminary hearing are allowed. The accused and victim may request the recording and have access to the recording, but the government is not required to provide either the accused or the victim copy of the recording. The government is not required to complete a verbatim transcript of all or any part of the preliminary hearing, but the SJA may authorize a verbatim transcript.
If the SJA authorizes a verbatim transcript, then the accused and the victim may request, have access to, and be provided a copy of the verbatim transcript The Accused. PHOs are limited to an examination of the issues necessary to fulfill the purpose of the preliminary hearing described in para The PHO is limited to hearing testimony and examining evidence presented by the GC and the DC.
The Military Rules of Evidence M. In applying an M.
The PHO shall assume the military judge s authority to exclude evidence from the preliminary hearing, and in discharging this duty follow the procedural requirements of the corresponding M. Failure of either party to follow the procedural requirements of the corresponding M.
32 CFR 884.3 – Placing member under restraint pending delivery.
The PHO stands in the place of a military judge with respect to an M. PHOs have the authority to conduct closed hearings and to seal records. The PHO assumes the military judge s authority to follow procedures in M. Sexual behavior is defined as any sexual behavior not encompassed by the alleged offense.
Sexual predisposition refers to an alleged victim s mode of dress, speech or lifestyle that does not directly relate to sexual activities or thoughts but that may have a sexual connotation for the fact finder Hearing Order of Events. After the PHO has informed the accused of the accused s rights, and completed preliminary evidentiary hearings, GC will present evidence.
Witness testimony may be provided in person, by VTC, by telephone or similar means of remote testimony. All testimony, except that of an unsworn. Upon the conclusion of GC s presentation of evidence, DC may present matters in defense and mitigation. For purposes of the preliminary hearing, matters in mitigation are defined as matters that may serve to explain the circumstances surrounding a charged offense. The PHO shall provide GC and DC opportunity to cross-examine adverse witnesses on matters relevant to the limited scope and purpose of the preliminary hearing Other Evidence.
If relevant to the limited scope and purpose of the preliminary hearing, and not cumulative, the PHO may consider other evidence, in addition to or in lieu of witness testimony including victimsincluding sworn statements, tangible evidence, or reproductions thereof, when submitted by either GC or DC, that the PHO determines to be reliable. Evidence not under the control of the government may be obtained through noncompulsory means or by subpoenas duces tecum issued by the GC.
Ordinarily, Article 32 preliminary hearings are open to the public, including access by news media, whenever possible.
United States v. Graham –
Victims of crime are entitled under Article 6b, UCMJ, to be present and may only be excluded if the PHO determines by clear and convincing evidence that the testimony by the victim of an offense under the UCMJ would be materially altered if the victim heard other testimony at the hearing.
If a PHO excludes a victim from the hearing, the PHO shall provide specific findings of fact in writing that support the exclusion and the written findings of fact must be included in the PHO s report. Access by spectators to all or part of the proceeding may be restricted or foreclosed at the 51-20 of the convening authority who directed the preliminary hearing, or at the PHO s discretion when an overriding interest exists that outweighs the value of an open preliminary hearing.