Understanding the Court Martial Process
June 17, 2020
If you are a military service member who has been accused of or arrested for a crime, you may now be facing a court martial. These criminal proceedings are reserved for members of the military. As such, military law applies, not the federal criminal code. While the two are similar—including the fact that the accused is innocent until proven guilty—there are some significant differences you should be aware of.
How Courts Martial are Structured
Military law, also known as the Uniform Code of Military Justice, governs how justice is dispensed in all 5 military services. First, senior military commanders become the “convening authority” in a court martial when a member of their troop is accused of a crime. Generally, that is the first FLAG officer in the service members chain of command. Commanders have the authority and the duty to uphold the UCMJ. This authority and duty comes with the power to prosecute, select panel members for the venire, and approve verdicts of the court martial. Uniformed judges preside over the court.
Court Martial Jury
Verdicts are decided by a military panel or a military judge. Service members are not entitled to a jury of their peers. However, the UCMJ affords Service members the opportunity to elect their case be decided by either a Judge or panel members with one exception to be discussed at a later date. Members are comprised of handpicked officers and enlisted members. Panel members cannot be junior in rank to the accused. Enlisted service members may request to have at least one-third of the jury be enlisted.
Panel cases for General Courts Martial are limited to no more than 8 members. Panel cases for Special Courts Martial are limited to no more than 4 members. Only a three-fourths majority is needed for a conviction. This differs from civilian courts, where the jury must agree unanimously. However, even in military proceedings, a death sentence requires 12 members and a unanimous vote for the sentence.
Right to an Attorney
In the case of general and special courts martial, the accused may seek representation from a free military attorney. However, because summary courts martial dole out less severe punishments, accused individuals aren’t provided a free lawyer, but hiring one is still highly recommended.
If you know of a lawyer you want to use, you can specifically request him or her. Otherwise, a defense attorney will be assigned to you by a trial defense service run by someone other than the party who brought the charges against you.
Referring the Case for Trial
Once the accused has obtained a lawyer, the next step is to determine if and how the case will proceed. If there’s a lack of evidence, the charges may be dismissed before a court martial ever occurs. Other times, the charges may be reduced and resolved through an Article 15 punishment. However, if the commanding officer wants to move the case forward, a determination of the level of court martial takes place so the case can be “referred” for trial.
Requesting and Preparing Witnesses
As with civilian court cases, the accused has the right to request witnesses. The prosecution (also known as the trial counsel) seeks their own witnesses as well. Both parties gather evidence and prepare their witnesses before the proceedings begin.
The trial counsel is required to arrange for all witnesses to be available at the trial. The government is obligated to pay the cost of bringing witnesses to the court martial, including expert witnesses, which could otherwise be cost-prohibitive.
Types of Courts Martial
There are three types of courts martial, each of which differs slightly in its makeup and the punishments it can dole out.
General Court Martial
These proceedings are often characterized as felony courts, making them the most serious of all courts martial. Anyone subject to the UCMJ—including enlisted members, officers, and midshipmen—may be tried in a general court martial.
Before the court martial begins, the accused is afforded the right to attend an Article 32 hearing, also known as a probable cause proceeding. This is roughly equivalent to a grand jury proceeding, where the investigating officer decides if there’s enough evidence to take the case any further. But unlike a grand jury proceeding, the defendant can cross-examine prosecution witnesses and introduce unique evidence in an attempt to stop the case from moving forward.
If the case proceeds, a member of the Judge Advocate General corps is selected as a military judge. A panel of at least five jury members is also present, unless the accused requests to be tried by a military judge alone. Waiving the right to a jury trial only occurs in extremely rare cases.
A general court martial may deliver any punishment allowed by the UCMJ, including death for murder and several other crimes, such as espionage and aiding the enemy. Capital punishment requires specific authorization, and the offense must usually be committed during wartime to warrant execution.
Special Court Martial
Often deemed as a misdemeanor court, a special court martial may try anyone subject to the UCMJ. The accused has a limited right to a jury of just 4 members. Because special courts martial handle less serious crimes, they may be convened by lower-ranking commanders. Rather than holding a formal Article 32 hearing, an informal investigation is sufficient when referring cases to a special court martial.
These proceedings can only dole out limited punishments. Typical sentences include a bad conduct discharge, confinement for up to a year, hard labor for up to three months, and forfeiture of up to two-thirds pay for up to one year. Also, enlisted members may be reduced to the lowest pay grade, but officers can’t be reduced in rank or discharged. Other prohibited punishments include death, dishonorable discharge, dismissal, and prolonged jail time, hard labor, or forfeiture of pay.
Summary Court Martial
These proceedings only hear cases involving enlisted personnel accused of minor offenses. One commissioned officer serves as judge and jury during a summary court martial. The accused has the right to cross-examine witnesses, call their own witnesses, produce evidence, and either testify or remain silent. Possible imposed sentences include up to one month of confinement, hard labor, forfeiture of pay, or reduction in rank.
Because only a three-fourths majority is required to convict the accused, many courts martial end with a conviction. The sentencing phase, known as “extenuation and mitigation,” proceeds immediately. At this time, the accused has a chance to present witnesses and evidence that may lead to a less severe sentence. If the accused chooses to testify during this phase, it should be done by reading a prepared statement.
Hiring a Court Martial Attorney
No matter what charges have been leveled against you, or what military court proceedings you’re facing, Joseph L. Jordan, Attorney at Law can represent you. We are dedicated to aggressively defending our clients, and we’re not afraid to challenge the prosecution’s evidence. We have decades of combined experience representing members from all branches of service, and we’re available regardless of where you’re stationed around the world.