Military service members have different rights than civilians. Still, they are protected under the Fifth Amendment of the US Constitution, which states:
“No person shall…be subject for the same offense to be twice put in jeopardy of life or limb.”
This means no one can be charged more than once for the same crime. However, important legal distinctions apply to this principle, especially when it comes to service members.
The military is governed by the Uniform Code of Military Justice (UCMJ), a criminal justice system parallel to but separate from the one that rules civilians. At the same time, service members remain subject to civilian laws.
So what happens when military members are arrested for breaking a civilian law? Can they be prosecuted by a military court as well? Find out why the answer to this question is yes, despite the double jeopardy rule.
When Double Jeopardy Protections Apply to Military Members
The right against double jeopardy does not protect against participating in more than one court system. After all, even civilians acquitted at the state level may be tried for the same crime in federal court. Rather, double jeopardy protects against repeated prosecution within the same jurisdiction.
Double jeopardy protections are outlined under Article 44 of the UCMJ, which states:
“No person may, without his consent, be tried a second time for the same offense.”
These protections take effect as soon as evidence is presented in a court-martial, regardless of the outcome of the case. It doesn’t matter if the service member is found guilty, acquitted, or dismissed before any findings are made—the military cannot try the service member again for the same crime under double jeopardy protections.
When Double Jeopardy Protections Do Not Apply
While it’s helpful to know when double jeopardy applies, it’s even more important to understand when it does not. Here’s what you need to know.
Double Jeopardy Doesn’t Apply to Separate Court Systems
Service members who face a civilian trial, whether in a state court or a foreign court, can also be tried in a court-martial for the same crime. At first, this may seem like a violation of double jeopardy protections. However, it’s permitted because military and civilian courts are fundamentally separate systems, each with its own set of rules and regulations. This is known as the doctrine of dual sovereigns, which gives independent governments the right to enforce their own criminal laws.
It’s unclear how often the military tries service members on charges previously adjudicated in civilian courts because the armed forces don’t keep records on civilian cases. However, when examples emerge, the crimes are usually egregious, such as rape or murder. Military commanders are usually only interested in trying cases again if they believe the state court’s sentence was too lenient.
Double Jeopardy Only Applies to Judicial Criminal Proceedings
Non-judicial punishment (NPJ) under Article 15 of the UCMJ is a type of disciplinary action that may occur when a military member is charged with a minor offense. Once someone faces an Article 15 hearing, they can’t receive another NPJ for the same offense.
However, someone sentenced to forfeiture of pay or other administrative punishments could later face a court-martial for the same offense. This is because double jeopardy protections don’t overlap administrative and judicial proceedings. Still, it’s possible to request that criminal charges be dropped or mitigated based on prior administrative punishments.
Also consider that if you’re facing non-judicial punishment, you have the right to demand a trial by court-martial instead. This may be a better choice if you suspect you’ll go through a court-martial anyway and want to avoid receiving both administrative and judicial punishment. The only way to feel confident in your decision is to consult with an attorney.
Double Jeopardy Doesn’t Apply if the Court-martial Lacks Jurisdiction
Sometimes, court-martial proceedings are terminated for lack of jurisdiction. This may occur if the charges were referred by someone without the authority to do so. Another example is if the adjudicator feels the trial was performed hastily or the defendant lacked adequate counsel. Once the jurisdiction is corrected, the underlying charges can be brought again.
Service Members Can Inadvertently Waive Their Double Jeopardy Protections
Failure to promptly file a motion to dismiss criminal charges barred by double jeopardy could waive the service member’s rights to such protections.
What About Double Punishment?
If a service member is convicted by a civilian court, usually the conviction is used as a basis to initiate an administrative separation action against the service member. If they are enlisted, this could be an administrative separation board and, if they are an officer, it could mean a board of inquiry. In either case, the service member would have to meet the appropriate qualification to trigger their right to a hearing.
For more information, read about a board of inquiry and an administrative separation board.
Protect Your Double Jeopardy Rights
Clearly, double jeopardy is a complicated concept, especially for service members. If you’re facing a criminal charge before civilian and military authorities, it’s imperative to speak with a military defense lawyer for guidance.
Joseph L. Jordan, Attorney at Law, is here to protect your rights. Choose us to represent your case, and we’ll offer expert legal counsel based on your unique situation. For more information about double jeopardy protections, please contact us toll-free at 800-580-8034 or 254-221-6411 to speak directly with Mr. Jordan about your case.