If the words “pretrial restraint” or “pretrial confinement” have any relevance to your current situation or to your family member’s situation, we strongly recommend you immediately consult with the expert military criminal defense attorneys at Mangan Law.

Law of Pretrial Restraint in the UCMJ

Pretrial restraint is governed by Chapter III of the Rules for Courts-Martial, which includes RCM 301 through 308. It is primarily governed by Rules 304 and 305.

What is pretrial restraint?

The UCMJ defines pretrial restraint as “moral or physical restraint on a person’s liberty which is imposed before and during disposition of offenses. Pretrial restraint may consist of conditions on liberty, restriction in lieu of arrest, arrest, or confinement.”

  • “Conditions on liberty” are imposed by orders directing a person to do or refrain from doing specified acts.
  • “Restriction in lieu of arrest” is an order directing the person to remain within specified limits; for example, an order not to leave post or their barracks room except with express permission.
  • “Arrest” is the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits. It is generally a temporary condition that leads to other forms of restraint or to release.
  • “Pretrial confinement” is physical restraint in the form of confinement in a facility like a jail or a brig. In the military, this can mean months of confinement in a military or civilian jail cell.

What does the command need to show to place me in pretrial confinement?

Under the UCMJ, to order you into confinement, the command must demonstrate a “reasonable belief” that:

  • An offense triable by court-martial has been committed.
  • There is probable cause that you committed it.
  • Confinement is “required by the circumstances.”

The person who initially orders servicemembers into confinement is the commander, not a JAG or a military judge.

What are my rights once I am confined?

As soon as you are confined, you have the right to be “promptly informed” of the following:

  • The nature of the offenses;
  • The right to remain silent and that any statement made may be used against you;
  • The right to retain civilian counsel;
  • The right to request assignment of military counsel; and
  • The procedures by which pretrial confinement will be reviewed.

How does the 72-hour review work?

Within 72  hours, your commander must determine whether the pretrial confinement will continue. The commander must release you unless they find probable cause (reasonable grounds) to believe that:

  • An offense triable by court-martial has been committed;
  • You committed it;
  • Confinement is necessary because it is foreseeable either that:
    • You are a flight risk; or
    • You will commit serious misconduct.
  • Less severe forms of restraint are inadequate.

The 72-hour review does not involve an in-person hearing. It does not offer you an opportunity to testify or call witnesses. It happens on paper and outside of your presence.

A servicemember cannot be confined just because it is convenient for the command. The Manual for Courts-Martial directs the command to consider the following:

How does the 7-day review work?

Within 7 days after being confined, your case must be brought before “a neutral and detached officer.” Typically, this will be a Judge Advocate in the rank of O-4 or higher who does not serve as a “trial counsel” (i.e. prosecutor). This officer – often called a “military magistrate” – will make the same determinations that the command has previously made.

The 7-day review is an important stage for two reasons.

First: The magistrate is a neutral attorney with no attachment to you or your case. They are the first person other than the person who ordered you into confinement who will have a chance to review whether your confinement is legal. They are more likely to scrutinize the legality of your confinement and consider whether alternatives to confinement are appropriate in your case.

Second: The 7-day review provides for an in-person hearing. You will have the right to appear before the magistrate with your attorney and present a legal argument. The Rules for Courts-Martial do not expressly provide for the presentation of evidence other than your ability to make a statement, but we have found in the past that military magistrates will usually listen to both argument and new evidence that supports your release.

What do these hearings look like?

Generally, the command will reserve a conference room at their headquarters or in the servicing legal office. You, your attorney, the magistrate, the trial counsel, the trial counsel’s paralegals, and escorts from the command will convene and conduct the hearing. The hearing typically takes an hour or less. On rare occasions, the prosecutor will call witnesses. You have the right to make a statement. Magistrates generally invite defense lawyers to make arguments and submit additional evidence.

Do the rules of evidence apply to PTC hearings?

For the most part, no. These hearings only follow a handful of rules of evidence, including the rules concerning privilege (e.g. the attorney-client privilege).

What if the 7-day review upholds the confinement?

It is difficult to overturn a magistrate’s decision to continue to hold a servicemember in confinement. It is possible, however, to ask a military judge to release a servicemember from confinement pending trial. The military judge may order release if there is new information supporting your release, if the magistrate abused their discretion, or if the procedural rules for confinement were not followed and the evidence does not support confinement.

Can a lawyer get me out of pretrial confinement?

Yes. The experts at Mangan Law have freed servicemembers from pretrial confinement on many occasions.

Is there bail in the UCMJ?

No. The UCMJ does not use bail like civilian criminal justice systems do. Service members facing trial are either confined or released based primarily on a determination of their flight risk and the risk they will commit serious misconduct.

Is pretrial confinement common?

Pretrial confinement in the UCMJ is not rare, but it is not the standard. Most servicemembers facing courts-martial are free to go about their day and perform their duties as they do normally. Usually, the command will enforce lesser restrictions, like scrutinizing the servicemember’s leave requests to ensure they attend all court proceedings.

If I am sent into pretrial confinement, where will I go?

It depends on the installation. On some installations, you will be sent to a military confinement facility on that installation or a nearby installation, usually, a naval brig. At Fort Bragg, for example, Soldiers in PTC are typically detained at the Marine Corps Brig at Camp Lejeune. On other installations, you may be confined at a local city or county correctional facility.

If I am in the military, can I be arrested or charged by non-military authorities?

Yes. Federal and state law enforcement authorities can apprehend you even though you are a servicemember. You can be charged and tried in federal or state court as well.

Pretrial confinement is one of the most extreme actions a command can take, and it often happens before you have had a real chance to defend yourself. These decisions are made quickly, and the earliest reviews are often the most important opportunity to secure your release. What your attorney presents at the 72-hour and 7-day reviews can determine whether you spend months in confinement or return to your unit. If you or a family member is facing pretrial restraint or confinement, contact Mangan Law immediately to protect your freedom and assert your rights under the UCMJ.


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