Courts-martial are military courts that try the serious offenses of accused service members. As in civilian courts, a jury sits in on most court-martial cases. However, the selection process differs greatly, especially for Article 120 cases addressing sexual assault and rape. Learn about the differences and how a military defense attorney can help ensure you receive a fair trial.

Civilian Jury Selection vs. Military Jury Selection

The right to a 12-person jury of your peers is a fundamental aspect of the civilian justice system in the United States. Jurors are often selected randomly based on their last name or address. The idea is to collect a sample of the general public to participate in the case.

The jury selection process for military courts-marital is very different. The accused’s commanding general nominates commissioned officers and enlisted service members to sit on the jury panel. Members may not be junior in rank to the accused, and up to one-third of the panel may be officers. The convening authority is then legally required to select jury members based on age, education, training, length of service, and judicial temperament.

It’s worth noting that court-martial cases don’t commonly use the word “jury.” Instead, this group of people is called a “court member panel.” The number of people on a panel varies and may exceed 12 in some cases.

Summary & Special Court-Martial Juries vs. General Court-Martial Juries

Summary courts-martial have no court panels. Instead, one officer oversees the proceedings. This officer is authorized to call witnesses, hear evidence, decide on evidentiary matters, deliver a verdict, and impose a sentence.

Special courts-martial typically include court panels, which must consist of four or more people (up from three prior to changes made in 2019). The accused may also choose to be heard by a judge alone.

In a general court-martial, the accused may be tried by an officer panel, an enlisted panel, or a judge alone. If they opt for a panel, at least eight members must be chosen (up from five prior to 2019). The case can continue if one or two panel members must leave due to an emergency during trial.

Cases that could lead to the death penalty can only be tried in a general court-martial and must be unanimously decided by a panel of 12 members. All other military court cases require a three-fourths vote to convict (up from two-thirds prior to 2019).

Voir Dire Process of Jury Selection

The expectation is that the accused’s commanding general will select a fair and impartial jury. However, this isn’t always the case.

To prevent unfairly stacking the deck, the Uniform Code of Military Justice (UCMJ) allows for a process called voir dire, French for “speak the truth.” This is a preliminary examination of a juror by the judge and legal counsel. The purpose is to root out biased panel members and ensure the case is decided fairly. It’s not unheard of for a court panel to begin with 18 or 20 people as selected by the accused’s commander, only to be whittled down to 10 or fewer after the voir dire process.

Stacking the Deck Against the Accused in Article 120 Cases

Article 120 of the UCMJ addresses sexual assault and rape, crimes that are always tried in a general court-martial. These cases are especially prone to having senior leaders stack the deck against the accused.

Take this overturned Coast Guard rape trial from 2012. The court panel consisted of seven jurors, five of whom were women, even though only 16 percent of active-duty Coast Guard members were female. Plus, four of the five women were uniformed victims’ advocates.

This unmistakably stacked deck resulted from four flag officers selecting or submitting panel members separately rather than collaborating on their decisions. This speaks to the way politics influence command choices in the military justice system and highlights the flaws of allowing subjective tasks like jury selection to fall to commanding officers.

After the accused was sentenced to three months of confinement, demotion in rank, and a bad conduct discharge, he appealed, arguing that the biased court panel had infringed on his right to a fair trial. Perhaps even more troubling, the prosecution’s case was based on the alleged victim’s weak testimony. Her account was vague due to intoxication at the time of the event, and other witnesses contradicted her statements at trial. Indeed, the investigating officer recommended that the rape charge be dropped before the case even went to trial.

The Coast Guard of Criminal Appeals ordered a fact-finding hearing to discover what happened in the jury selection process. The court found the following:

• The first flag officer selected 10 officer panel members, six of whom were women, from a roster where only 20 percent of the names were female.
• The second officer, who served as the original convening authority on the case, selected 10 enlisted Coast Guardsmen to round out the panel. Four of the chosen people were women.
• Some panel members had to drop out, so a third flag officer stepped in to pick replacements. Of the eight people chosen, three were women.
• By now, the panel comprised 75 percent women on the enlisted side and 67 percent women on the officer side. A new convening authority took over the case and was not presented the gender makeup of the panel. Without probing further, the convening authority sent the group forward for the voir dire process.

Clearly, the senior leaders who selected panel members for this Article 120 case were either consciously or unconsciously aware that having a large percentage of women was important to achieve a specific outcome.

A Perfect Storm

As previously mentioned, convening authorities are required to consider various factors when selecting jury panels, including age, education, training, length of service, and judicial temperament. Gender is not included on this list. And while it’s common to intentionally select minority panel members in cases with minority defendants to ensure fair representation, it is not fair to pack a jury with people likely to sympathize with the alleged victim.

When determining how such a stacked deck could have occurred in the overturned Coast Guard rape trial, it’s important to consider the timing. In 2012, Congress started cracking down on sexual assault in the military. This—combined with the statute governing the panel member selection process—created a perfect storm where senior officers feel pressured to pick a victim-friendly jury to send a message about sexual offenses. This combination also underscores the military’s inability to police its members for serious criminal offenses.

Defend Yourself Against Article 120 Accusations

Being accused of rape, sexual assault, or another offense under Article 120 is a stressful, career-altering, life-changing accusation. You need a military defense attorney in your corner!

Joseph L. Jordan, Attorney at Law, can vigorously defend your rights and reputation as you prepare for your court-martial. We’ll compile compelling evidence and form persuasive arguments to convince the judge and court member panel of your innocence or right to a lesser sentence. And if we believe the court panel is stacked against you, we’ll argue this inequity on your behalf.

To speak directly with Mr. Jordan about building your defense, please call us toll-free at 800-580-8034 or 254-221-6411. We operate out of Killeen, Texas, and represent service members stationed worldwide.