Daniel Conway | Military Attorney
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Rule for Courts-Martial 305(h)(2)(B) authorizes pretrial confinement when an accused’s commander has probable cause, or reasonable grounds to believe, that: 

(i) An offense triable by a court-martial has been committed; 

(ii) The prisoner committed it; and

(iii) Confinement is necessary because it is foreseeable that:

(a) the prisoner will not appear at trial, pretrial hearing, or investigation, or

(b) the prisoner will engage in serious criminal misconduct; and 

(iv) Less severe forms of restraint are inadequate. 

“Serious criminal misconduct” includes offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command. Id. The commanding officer’s decisions to initiate or to continue pretrial confinement do not go unchecked. Within 7 days of the imposition of confinement, a neutral and detached officer reviews the commanding officer’s probable cause determination and the necessity for continued pretrial confinement. R.C.M. 305(i)(2).

At the IRO hearing, the reasons for confinement must be proved by a preponderance of the evidence. R.C.M. 305(i)(2)(A)(iii). If the IRO finds the evidence does not support the initial decision to place an accused into pretrial confinement, or that the evidence does not support continued pre- trial confinement, the accused is ordered released. If the IRO finds sufficient evidence to continue pretrial confinement, an accused can seek redress from a military judge once charges are referred. R.C.M. 305(j). 

A military judge may order an accused released from pre- trial confinement only if:

(1) the IRO abused his discretion and insufficient information is presented to the military judge justifying continued pretrial confinement; or,

(2) information that was not presented to the IRO establishes that the accused should be released; or,

(3) the rules controlling the initial 48-hour probable cause determination and 7-day review of pretrial confinement were not complied with, and insufficient evidence is presented to the military judge to justify continued pretrial confinement. R.C.M. 305(j)(1)(A)-(C). 

Mental condition of accused - Although, an accused's mental condition is an appropriate consideration in deciding whether to place or maintain an accused in pretrial confinement, it must be relevant to the two basic criteria: (1) whether the accused will be present for trial; and, (2) whether the accused is a threat to commit other acts of serious misconduct. Error to impose pretrial confinement based on suicide risk. US v. Doane, 54 M.J. 978 (A.F.F.C.A. 2001)

Neutral and Detached IRO - Officer who consulted with investigators during the latter stages of the investigation about a proposed attempt to purchase marijuana from the accused, who gave them specific advice on the procedure to be followed, and who placed himself at the command post and provided advice to the investigators on the probable cause and various other legal issues pertaining to the operation was disqualified from acting as a hearing officer with respect to the accused's pretrial confinement. . U.S. v. Fals, AFCMR 1978, 6 M.J. 713.

Types of Confinement Credit
Allen: Credit for pretrial confinement (usually includes civilian confinement) - day for day until sentence imposed

Article 13: Pretrial punishment or unduly rigorous conditions

R.C.M. 305 (k): Abuses of discretion in imposing pretrial confinement

Mason: Restriction tantamount to confinement
​

Pierce: Credit for nonjudicial punishment for the same offense
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The information on this page is informational in nature. Nothing on this or associated pages should be construed as legal advice for a particular case. Likewise, the information on this website does not constitute the creation of an attorney-client relationship. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
  • Practice Areas
    • Correcting Military Records >
      • Evaluation Report Appeals
      • Reprimand Appeals
      • Family Advocacy Program Appeals
      • Discharge Review Boards
      • Cadet Misconduct
      • Titling Actions
      • Military Protective Orders
    • Separation Boards
    • Military Medical Malpractice Claims
    • Forms, Downloads, and Regulations
  • Military Crimes and Defenses
    • Military Law >
      • Court-martial Information >
        • Know Your Rights
        • Court-Martial Rules >
          • Pretrial Confinement
          • Unlawful Command Influence
          • Article 31 Violation
          • Military Rule of Evidence 412
          • Involuntary Statements
          • Failure to State an Offense
          • Wheeler Factors
      • Court-Martial Defense >
        • Military Sexual Assault Defense
        • Military Drug Defense >
          • Drug Detection Windows
          • Marijuana
          • Cocaine
          • Morphine and Heroin
        • Disrespect Offenses
        • Conspiracy Cases
        • False Statements >
          • Obstruction of Justice
        • Use of Force
        • Assault Cases
        • Conduct Unbecoming
      • Court-Martial Appeals >
        • Petitions for a New Trial
        • Insufficient Evidence
    • Introduction
    • Article 77 Principles
    • Article 78 Accessory After the Fact
    • Article 79 Lesser Included Offenses
    • Article 80 Conspiracy
    • Article 81 Attempts
    • Article 82 Solicitation
    • Article 85 Desertion
    • Article 86 AWOL
    • Article 88 Contempt Towards Officials
    • Article 92 Failure to Obey an Order
    • Article 93 Maltreatment
    • Article 107 False Official Statement
    • Article 112a Wrongful Use of a Controlled Substance
    • Article 119 Manslaughter
    • Article 119b Child Endangerment
    • Article 121 Larceny or Wrongful Appropriation
    • Article 125 Kidnapping
    • Article 133 Conduct Unbecoming
    • Article 134 Bribery and Graft
    • Article 134 Indecent Language
    • Article 134 Obstruction of Justice
  • Firm History
    • Films
    • Books
    • Sketches
    • My Lai
    • Abu Ghraib
    • Haditha
    • MARSOC
    • The Stryker 5
    • Gary Myers
  • Results
  • Blog