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FAQs About Courts Martial

August 3, 2020

Have you or a loved one been accused of or charged with a crime while serving in the military? If so, you may now be facing a criminal hearing called a court martial. These proceedings are conducted under military law, also known as the Uniform Code of Military Justice, or UCMJ. Because military law differs from the federal criminal code that applies to civilians, you may have questions that only a court martial attorney can answer.

What is the difference between a general, special, and summary court martial?

The three types of courts martial have slight procedural differences and dole out different punishments.

For less serious transgressions, such as breaches of military etiquette and regulations, a non-judicial punishment (NDP) may be held instead of a court martial.

Who is the convening authority in a court martial?

The “convening authority” is the person who has the right to summon you to a court martial. This is typically a senior-level military commander, such as an admiral, a general with multiple stars, or the first FLAG officer at the top of the service member’s chain of command. Be aware that some military bases are large enough to have more than one convening authority present.

How long does a court martial last?

The time between the alleged crime taking place and receiving the final verdict and sentence depends on what type of court martial you’re going through.

  • A summary court martial can generally be completed in as little as a week. However, if your attorney attempts to make a deal on your behalf, you could end up waiting about 60 days for the verdict.
  • A special court martial usually wraps up within three to six months. It may take more time if your attorney recommends using a military panel instead of the military judge alone.
  • A general court martial doesn’t begin immediately. Instead, an Article 32 hearing, also known as a probable cause proceeding, takes place first. If the investigating officer determines that there’s sufficient evidence, the case will move forward. In all, the process takes around six months to a year.

What happens before the court martial trial?

When you are court martialed, several things must take place before the case goes to trial.

  • Investigation: No matter which type of court martial you’re facing, the initial inquiry phase typically takes the longest. It’s not uncommon for investigations to last several months or more. At this point, you have not been charged with a crime yet, but you are considered a suspect.
  • Preferral: If the investigation turns up enough evidence, you will be formally charged. The charging standard is probable cause. Basically that means, is there a 51% chance that the charge crime was committed.
  • Discovery: The parties uncover additional evidence by gathering documents in the government’s control, conducting interviews, requesting formal statements, and asking to look through your belongings. Defense always requests discovery through a formal document. Discovery is ongoing from preferral of charges right up until the actual trial itself. At preferral, the accused is only entitled to that evidence that went into the probable cause determination to write the charge sheet.
  • Preliminary hearing (Article 32): This hearing is similar to a grand jury proceeding. The preliminary hearing officer, (PHO), will review evidence, listen to witnesses and ultimately make a determination as to whether or not probable cause exists to send this case to trial.  Yes, it’s the same standard at preferral of charges mentioned above.  The PHO is authorized to investigate new charges, make recommendations for new charges, highlight the strengths and weaknesses of the Government’s case and point out defects in the current charges.  The PHO also decides if witness testimony is relevant.  Given the low evidentiary standard required at this hearing, it is rare that witnesses are called.
  • Referral: The charges are “referred” to the court martial, and the process really begins. This is the point when you should obtain legal counsel. A military attorney can advise you on when to cooperate and when it’s in your best interest to refuse.
  • Motions Hearing (Article 39a Sesssions): Several weeks before trial, a preliminary hearing usually takes place to bring the “motion” to the judge. This written legal document requires the judge to take action, which may include limiting certain evidence, forcing the government to produce witnesses or documents, or dismissing some or all of the charges against you.
  • Pre-trial preparations: Before the trial begins, both the defense and prosecution prepare their evidence, make final strategy decisions, and get you and the witnesses ready to potentially testify.

What happens during a court martial trial?

Once all the preliminary phases are complete, the trial itself typically lasts two to six days. It takes place before a military judge alone or a judge and jury, known as court members. Most of the time, you should elect to have a jury trial so more people can hear your case and vote on the verdict. Here’s a summary of what a court martial trial entails:

  • Military Panel Selection: In military court, there is no such thing as a jury. What is commonly known as a jury is called a military panel.  The commander or staff judge advocate selects court members. These individuals must be your rank or above to sit on the panel. Your attorney or the judge asks these members questions to ensure they can be fair and objective in your case.
  • Court proceedings: The bulk of the trial consists of opening statements, examination and cross-examination of witnesses, and closing arguments. As simple as this chain of events sounds, it’s crucial to have an experienced military lawyer to represent you every step of the way.
  • Military Panel Deliberation: Many people are familiar with civilian courts, which require a unanimous verdict to convict the accused of a serious crime. However, military law only requires a three-fourths majority (except when a death sentence is involved), meaning that most courts martial end in a conviction.
  • Sentencing: Also known as “extenuation and mitigation,” the sentencing phase proceeds immediately. This gives the accused a chance to present additional witnesses and evidence that could lead to less severe punishment. Only a few offenses have mandatory minimums, and those include Article 120 and Article 118 offenses.  For more the mandatory minimum sentences, click on this link:

What are the possible outcomes of a court martial?

While there is a maximum punishment that can be given for each UCMJ Article, the sentences given out vary widely depending on the charge, quality of the legal defense, and evidence presented.

  • A minor offense conviction in a summary court martial could result in hard labor for 45 days, restriction to a particular area for 60 days, reduction in pay for one month, reduction in rank, or confinement for up to 30 days.
  • A misdemeanor conviction in a special court martial could result in hard labor for up to three months, forfeiture of up to two-thirds pay for up to one-year, bad conduct discharge, or confinement for up to one year. Lastly, there is a new special court martial that limits sentences to 6 months and no punitive discharge.  In effect, there are two different special court martial options.  The six month special, as it is colloquially called is reserved for misconduct that does not merit a punitive discharge, but may merit confinement time to reflect on error of the Service Member’s ways.
  • A felony conviction in a general court martial may deliver any punishment not prohibited by the UCMJ, including dishonorable discharge, life in prison, and the death penalty for serious crimes such as murder, espionage, and aiding the enemy.

The accused has the right to appeal the outcome of a court martial if it’s believed that the military judge made an error of the law.

Hire a Court Martial Attorney to Defend You

If you have been summoned to a court martial, contact Joseph L. Jordan, Attorney at Law immediately. Regardless of the charges leveled against you or what type of court martial you’re facing, we can defend your rights. Our team is committed to giving your case the attention it deserves, providing exemplary legal advice that will increase the chance of an agreeable outcome. Call us toll free at 888-616-6177 or (254) 340-0867 today to get started.

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