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Pretrial Confinement

Pretrial Confinement at the Naval Brig

You are supposed to be innocent until proven guilty right? Then you may be asking why you or someone you love has been put into pretrial confinement at the Naval Brig or some other military confinement facility before your court-martial has even happened. Pretrial confinement is supposed to be used by commands as the last resort, however, increasingly commands (especially in the Navy and Marine Corps) are using it as a tool that goes hand in hand with court-martial charges. The standard of proof required for a command to throw you into the Naval Brig prior to your trial is exceedingly low – probable cause.  

The service member has the right to a hearing and decision within seven days regarding whether they will remain in pretrial confinement or be released. Depending on the branch, the hearing officer may be called different things such as magistrate or independent reviewing officer (IRO).  Because this is a hearing that occurs within a condensed timeline, all too often your military attorney will not have time to properly review your case and prepare a strategy for your hearing. I have even seen cases where the assigned military defense lawyer shows up at the Naval Brig, is handed the case file, and spends all of five minutes reviewing it before the hearing.

It is important that your military pretrial confinement lawyer understands Rule for Court-Martial (R.C.M.) 305, which governs pretrial confinement and IRO hearings, but also R.C.M. 304, which discusses lesser forms of restraint.

The government lawyers have the burden of proof at these hearings and they must meet the requirements by a preponderance of the evidence. The government attorneys must prove that (i) an offense triable by court-martial has been committed; (ii) the confinee committed it; and (iii) confinement is necessary because: (a) you are a flight risk; (b) you will engage in further serious misconduct; and (c) that lesser forms of restraint are inadequate.

Although the burden of proof is lower than at a court-martial, there are strict requirements that must be met for pretrial confinement to continue. Even though it is the government’s burden, it is imperative that your military pretrial confinement lawyer prepares an affirmative defense and prepares well organized written matters for the IRO or magistrate to consider combatting some or all of the above requirements.

Too often, your military court-martial lawyer will view this hearing as something that has already been lost and put little to no effort into fighting for your release. Even when the hearing officer recommends continued confinement, the fight is not over and there are still ways to fight for release. These include requests for reconsideration, motions with the military judge (after referral), and extraordinary writs to your service court of criminal appeals.

If you or someone you love has been put into pretrial confinement, contact us today to speak with one of our experienced military pretrial confinement lawyers to discuss your options. 808-358-7318