One of the main functions of a defense counsel in military courts is to do everything possible to prevent Unlawful Command Influence, otherwise known simply as "UCI".  Unlawful command influence occurs when a superior substitutes their judgment for that of a subordinate thereby precluding the subordinate from exercising their own independent judgment.  In the military justice system, this is unlawful and impermissible.  Additionally, exerting influence on witnesses (or even potential witnesses) on how they testify, or discouraging witnesses from testifying also threatens the fundamental right to a fair trial, the right to compulsory process, the right to cross-examine and confront witnesses, and the right to the assistance of counsel.  It also potentially violates Article 46, UCMJ, which assures the defense equal access to evidence.  See United States v. Gleason, 43 M.J. 69 (1995) (finding UCI in case where a battalion commander made clear to members of the battalion that: [1] he believed the suspect to be guilty, [2] that the suspect's military defense counsel was the “enemy,” and [3] that testimony should not be offered on behalf of the accused). 

Undue command influence occurs, among other times, when a person subject to the Uniform Code of Military Justice attempts to coerce or, by any unauthorized means, influence the action of any court-martial, any other military tribunal, or any member, in reaching the findings or sentence in a case, or the action of any convening, approving, or reviewing authority with respect to judicial acts (R.C.M. 104). 

If unlawful command influence is found by the Military Judge, and if the government fails to satisfy its burden that it did not occur or impact the proceedings, then dismissal of charges is a justifiable course of action.  Article 37, UCMJ, prohibits commanders, and others, from unlawfully influencing the action of a court-martial, and Article 98 makes punishable the failure to promptly dispose of charges or to enforce any other provision in the UCMJ.  
 
What follows is important:  “[O]nce unlawful command influence is raised at the trial level... a presumption of prejudice is created.”  United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F., 2009).  A military judge “may consider dismissal when necessary to avoid prejudice against the accused.  Dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings.”  Id. at 354-55 (citations omitted).  In Douglas, the court found that no-contact orders and negative behavior of the accused's military supervisor discouraged witnesses from providing character statements for the accused and resulted in unlawful command influence.  Id., at 352.   

The Government also, for example, cannot take deliberate action to influence an Article 32 Preliminary Hearing Officer as well as the procedures in this case.  An "Article 32 investigation is a judicial proceeding." United States v. Bell, 44 M.J. 403, 406 (1996). Ex parte communications between an Article 32 investigating officer and a member of the prosecution are improper.  United States v. Payne, 3 M.J. 354 (CMA 1977).

A defendant who is being denied the fair administration of justice and is clearly affected by the Government's influence of witnesses or the procedures needs a defense counsel ready to call this out.  If you believe you are the victim of "UCI", fill out the "Contact Us" form and speak with a civilian counsel today.