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Pretrial Agreements in the Military Court Martials

Pretrial Agreements in the Military Court Martials

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Published by Michael Waddington
Court Martial and Military Justice
Court Martial and Military Justice

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Published by: Michael Waddington on Jan 10, 2008
Copyright:Attribution Non-commercial

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06/16/2009

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Pretrial Agreements (PTAs).
A Pretrial Agreement is a formal written agreement between the accused and the Court-Martial Convening Authority. It is commonlyreferred to as a “PTA.” It usually involves a guilty plea by the accused in exchange for asentence limitation. In other words, the accused agrees to plead guilty to some or all of the charges and specifications and the Convening Authority agrees not to approve anadjudged sentence in excess of a specified maximum.Although not an exhaustive list, a convening authority may, as appropriate, promise: to refer the charges and specifications to a certain type of court-marital; to refer a capital offense as noncapital; to withdraw one or more charges or specifications fromthe court-martial; and to have trial counsel present no evidence as to one or morespecifications. Likewise, the accused can also make other promises that may cause theconvening authority to favorably consider a PTA. These might include promising: toenter into a stipulation of fact concerning offenses to which a plea of guilty is entered; totestify as a witness in the trial of another person; to provide restitution to victims; or towaive certain procedural requirements.Generally, pretrial agreements are not approved unless there is some convincingreason to forego trial on the facts and issues. For example, the case may have sensitive,sensational, or classified evidence or there is a desire to avoid the traumatic examinationof a child witness. These agreements are also limited to cases where the availableevidence of guilt is convincing and conviction is probable, assuming the case was to betried.The agreements can be initiated by the accused with the assistance of counsel or bythe government. If the government initiates a PTA offer, the defense counsel assists theaccused in negotiating and deciding upon an agreement. A military judge also has anaffirmative duty to ensure a pretrial agreement does not improperly limit the accused’sdue process rights. The entire pretrial agreement must be in writing and signed by theaccused, defense counsel, and the convening authority. The agreement must not involveany informal oral promises or representations. The agreement is normally prepared intwo parts. The first part ordinarily contains an offer to plead guilty, a description of theoffenses to which the offer extends, and a complete statement of any other agreed termsor conditions. The second part normally contains the convening authority’s agreement onlimiting the sentence. Either party may void an agreement by withdrawing from it.Withdrawals by either party must also be reduced to writing.At trial, the military judge will conduct a full inquiry into the specific terms of theagreement to ensure the accused: fully understands both the meaning and effect of each provision of the agreement; voluntarily entered into the agreement; and received no oral promises in connection with the agreement. This inquiry is in addition to the judge’s providence inquiry into the validity of the guilty plea itself without the accuseds permission.

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