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Summary Trial Question & Discussion

greencycle said:
... 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.
 
MCG said:
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)).
 
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.
 
MCG said:
  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.
 
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..."!
 
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.
 
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.
 
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.
 
ballz said:
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.
 
ModlrMike said:
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.

 
ArmyVern said:
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.).
 
The NDA and QR&O are clear that a summary trial must commence within one year of the date on which the offence(s) allegedly occurred.

What I can't find in either of those, or in the "Military Justice at Summary Trial" manual is what happens if the year expires and the trial has not started. Can the member no longer be tried? Does it automatically go to court martial?

For example, Bloggins gets charged with Drunkenness (not normally electable), and for whatever reason a year passes from the date of the alleged offence and the trial has not started. What happens then?

Seems a bit unfair if this forces it to court martial, with greater powers of punishment, when it should have been tried by summary trial. Any experience out there with this type of situation?
 
I think the charges are stayed.

FWIW, I've never encountered that situation either. Perhaps one of our resident legal experts can shed more light.
 
File would go to JAG, who would review and determine whether to go to court martial.  Given that a unit investigation may not hold up, I suspect most would not be proceeded with.

I believe military judges take such issues into consideration should an individual be found guilty - "If this had been properly handled, it would have been a summary trial, therefore the sentence was selected with that in mind".

I am not a lawyer, so take this all with several large grains of salt.
 
Incorrect Dataperson.

ModlrMike has the right answer: The charges are stayed.

The file is only forwarded to JAG so it can be recorded and filed away.

The power of election, where it exists, belongs only to the accused. For the "prosecution", there is no choice: if the charges can be tried only by summary trial or only by court martial, they have to go those route and take the consequences of screwing it up. Similarly, if it is a charge for which the "prosecution" has a choice, they cannot change it once they made a choice and then screwed it up. They lost their chance once the charge sheet has been drawn up and the accused given a copy. The prosecution is stuck with that process - period.

In case of a screw up leading to a charge of importance for discipline being stayed, I would expect some consequences to appear in someone's PEER  :nod:.
 
@Oldgateboatdriver -- With appreciation to the other responses, you seem to be speaking with a fair degree of certainty. So not that I am questioning the accuracy of your response, but is there any sort of reference that supports this?
 
No "reference". It's the state of criminal/military law. Check with a JAG officer. I am sure they will confirm this.

The concept is known as double jeopardy: Once you have been put "at risk" of being found guilty in a process issued by the Crown, but they failed for causes originating in their own deportment (here, failure to proceed within delays), they cannot have a second go at it in a different way.
 
Sorry - I was thinking that the charge had not been laid within a year.  In that case it would go to JAG to determine disposition.
 
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