Military Pre-Trial Agreements

Pretrial Agreements (PTAs). A Pretrial Agreement is a formal-written agreement between the accused and the Court-Martial Convening Authority. It is commonly referred to as a “PTA.” It usually involves a guilty plea by the accused in exchange for a sentence limitation. In other words, the accused agrees to plead guilty to some or all of the charges and specifications and the Convening Authority agrees not to approve an adjudged sentence in excess of a specified maximum.

Although not an exhaustive list, a convening authority may, as appropriate, promise: to refer the charges and specifications to a certain type of court-marital; to refer a capital offense as noncapital; to withdraw one or more charges or specifications from the court-martial; and to have trial counsel present no evidence as to one or more specifications. Likewise, the accused can also make other promises that may cause the convening authority to favorably consider a PTA. These might include promising: to enter into a stipulation of fact concerning offenses to which a plea of guilty is entered; to testify as a witness in the trial of another person; to provide restitution to victims; or to waive certain procedural requirements.

PTAs can be initiated by the accused with the assistance of counsel or by the government. The defense counsel assists the accused in negotiating and deciding upon a PTA. A military judge also has an affirmative duty to ensure a PTA does not improperly limit the accused’s due process rights. The entire PTA must be in writing and signed by the accused, defense counsel, and the convening authority. The PTA must not involve any informal oral promises or representations. The accused may withdraw from the PTA at any time prior to the sentence being announced. The convening authority can withdraw at any time before substantial performance by the accused of promises contained in the PTA.

At trial, the military judge will conduct a full inquiry into the specific terms of the agreement to ensure the accused: fully understands both the meaning and effect of each provision of the agreement; voluntarily entered into the agreement; and received no oral promises in connection with the agreement. This inquiry is in addition to the judge’s providence inquiry into the validity of the guilty plea itself without the accused’s permission.

The rules on pretrial agreements are contained at Rules for Courts-Martial (R.C.M.) 705 and 910, as supplemented by case law and service regulations.