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Apprehension and Confinement Before Trial

Active duty members of the military have many of the same rights under the UCMJ that civilians enjoy under their state and federal constitutions. There are some differences, though, which make it important to hire an experienced military defense lawyer with knowledge about how pre-trial confinement impacts your case.

This blog post reviews UCMJ rules covering restrictions and confinement following apprehension for a criminal offense by a U.S. servicemember.

Off-Post Arrest and Military Pre-Trial Restraint

A servicemember arrested off-post may either be confined by civilian police or released to the military. If released to the military, the servicemember's commander may then consider imposing pretrial restraint under Rule 304 of the UCMJ. "Pretrial restraint" can range anywhere from requiring the servicemember to periodically report to a certain person, to restricting him or her to post or the barracks, to placing the servicemember in pretrial confinement.

Like civilian law, the UCMJ only allows a person to be ordered into pretrial confinement if probable cause exists to believe the person committed a crime and to require confinement. Further, within seven days of being ordered into pre-trial confinement, a hearing must be held where a neutral officer reviews the command's probable cause determination and whether continued confinement is necessary. In most cases, the servicemember and an attorney for the servicemember are allowed to attend the hearing and make a statement.

It is critical to have a criminal defense lawyer who understands the UCMJ and military law

When charges are referred to court martial, a servicemember in pre-trial confinement has the right to request that the military judge review the conditions of confinement. The judge may terminate confinement or award the servicemember credit against any sentence he later receives, if convicted. Even a servicemember who is not held in pre-trial confinement but who has his liberties restrained pre-trial can potentially receive credit toward a later sentence, if convicted.

The rules about pre-trial restraint and confinement are complicated. Therefore, it is critical to have an attorney who will protect your rights as soon as possible after an arrest by civilian police or apprehension and confinement under the UCMJ. An experienced military criminal defense attorney will understand whether you are being properly confined, make the best argument for your release pre-trial, and know whether your rights are being violated.

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