Court-Martial Overview

Courts-Martial:  A frightening phrase

Quite often, the term court-martial is shrouded with mystery, heightened by stories from history and the distortions of movies and other mass media.  The word is used as a verb, and conjures images of cold justice administered by an unfeeling commander at the drum head, followed by lashes or a firing squad. 

The reality is quite different.  Court-martial is a traditional word for a Military court, and contains most of the features seen in American law and practice—with some notable exceptions.  Congress create the court-martial process through the Uniform Code of Military Justice (UCMJ); the President issued the procedural Rules for Courts-Martial (RCM); and the rules governing evidence come in large part from the Federal Rules of Evidence.

At a court-martial, you are entitled to the representation of a military counsel provided for you.  You may also choose a military counsel of your own choice by name, if that counsel is available.  You also have the right to be represented by an experienced civilian attorney, and have the option to retain a lawyer with extensive experience in the justice system.  This decision is the most important decision you may make in the handling of your case.

The Creation of a Military Court:

“Convening the Court”:  A commanding officer, called the convening authority in the military system, creates a court by signing a “convening order.”  This order appoints a panel of officers who  sit as potential members (the military equivalent of jurors) of the court.  This court exists without taking action until a specific case is referred to it.

“Preferral” of Charges:  Upon discovery of a suspected crime and completion of an investigation, the convening authority can directed the “preferral” of charges.  Preferral of charges is a formal act comparable to a civilian indictment.  This preferral is a significant legal moment, because it is the first time that a defendant, called the “accused” in the military, has the right to military counsel unless he or she has been placed in pretrial confinement.  This formal act of preferral starts the process going forward.

Disposition of Charges:  After preferral of the charges, the convening authority has a number of options:

             1.  Take no action; to handle the allegations by administrative instead of disciplinary means;

             2.  Punish the offense at Non-Judicial Punishment;

             3.  Appoint an Article 32 pretrial investigation as a prelude to a possible “general court-martial;” or

             4.  Refer the case to a summary or special court-martial

This time prior to preferral is a significant stage in the trial, as a well represented accused can negotiate potential dispositions of the case outside of the court-martial process, and preclude the possibility of a criminal conviction. 

Referral of Charges: The act of “referral” of the charges creates the court, and in the case of special or general courts-martial, leads to the appointment of an independent military judge who will preside over the case.  Once the case is referred, it is under the control of the military judge unless the convening authority withdraws and dismisses the charges.  The convening authority also retains the ability, through his trial counsel, to negotiate a “pretrial agreement” or plea bargain to dispose of the case.  This ability to plea bargain continues all the way up until the case ends.

Type of Court-Martial:  There are three types of courts—the summary court-martial, the special court martial, and the general court-martial.  These courts vary in both the degree of “due process” given to the accused and the maximum punishment permissible if found guilty of an offense.  See the following individual pages for more detailed discussion:

Summary Court-Martial

Special Court-Martial

General Court-Martial -- Article 32 Investigation

The Pre-Trial Process

Arraignment:  The trial begins with the arraignment, which is the formal moment where the military judge advises the accused of their rights and asks them for their pleas of guilty or not guilty.  In a case that has not already reached some form of plea bargain, this is the time that a schedule for the process of the trial—including discovery, witness requests, litigation of motions, and setting of trial dates—is set.  The accused has the option to either enter pleas at this time, or to reserve entry for a later date.  After this time, the accused is required to be present for all subsequent proceedings.  Voluntary absence from any future hearing would allow the court to proceed through to conclusion without the accused’s presence. 

Election of Forum:    One of the critical choices is the “forum,” or composition of the court that the accused elects.  The accused can choose to be tried by

       1.  “Members,” which normally means officers only;

       2.  “Members with one third enlisted representation,” which means that one third of the members would be enlisted personnel senior to the accused; or

       3.  Military judge alone.  

In a general court martial, there must be at least five members;  in a special, there must be at least three members.  All decisions concerning guilt or innocence are made by a two thirds majority vote. 

Litigation of Motions:  As in civilian trials, military courts provide the opportunity for extensive pretrial challenges and litigation prior to the case going to trial.  Typical motions include:

  • challenging the jurisdiction of the court;
  • challenging the impartiality of the convening authority and his actions
  • discovery of all government evidence and witnesses
  • obtaining expert assistance and witnesses
  • obtaining favorable witnesses for the defense
  • suppressing statements of the accused obtained in violation of the 5th Amendment of the Constitution
  • suppressing evidence seized by the government in violation of the 4th Amendment of the Constitution;
  • challenging the admissibility of all other evidence on legal grounds.

The Trial

The Guilty Plea:  Often, for example as the result of a plea bargain or pretrial agreement, the case can be disposed of by entering pleas of guilty.  Most often, the agreement will require election of military judge alone as a forum, and both the plea and the sentencing phase will be conducted by the military judge.  In the course of negotiating a plea bargain, it is possible to

       1.  arrange pleas of not guilty to some offenses which are withdrawn and dismissed;

       2.  Plead guilty to less serious offenses; or

       3.  Remove a case from a serious general court-martial to a special court-martial or lower. 

At the guilty plea, the military judge conducts a detailed factual inquiry, called a providence inquiry,  with the accused concerning the offenses in order to ensure that the accused’s pleas are made voluntarily and have a factual basis.  The military judge also discusses the terms of the pretrial agreement with the accused to ensure that all parties understand and agree to its terms. 

Finally, the judge enters his findings.

After the entry of findings, the parties have the right to present evidence on sentencing. The government can present evidence concerning the accused’s prior service, the severity of the offense, and the accused’s rehabilitative potential.  The accused has the right to present extensive evidence surrounding the offenses and their background, life, and experience to help the military judge to decide an appropriate sentence.   Include in this right is the right to call witnesses and to testify under oath, make an unsworn statement, or remain silent.  After argument, the military judge determines the sentence.  That sentence in turn is impacted by the terms of the pretrial agreement.  If the judge gives the accused less than the agreed bargain, the accused receives that sentence; if the judge awards a sentence greater than that in the pretrial agreement, then the accused receives the lower of the two. 

The Contested Case:  A contested court-martial bears all of the hallmarks of a traditional jury trial.  The members are subject to questioning by the court and the prosecutor and defense counsel concern their qualifications in process known as “voir dire,” and then are subject to challenges and excusal.  The parties make opening statements, and the government presents its case, striving to prove the accused’s guilt beyond a reasonable doubt.  The defense is permitted to challenge the evidence through cross examination and by presentation of their evidence.  After presentation of evidence, the parties make closing argument, followed by instruction of the members on the law by the  military judge.  They then close to deliberate. 

If 2/3 or more of the members vote for guilt on any offense, the accused is convicted; if fewer than 2/3 vote for a finding of guilty, then the accused is acquitted.

If the accused is found guilty of any offense, then the members next receive evidence on sentencing as described above.  The parties argue, the military judge instructs then on the law, and then the members deliberate and vote on sentence.  Again, the concurrence of the members for any sentence must be 2/3, or 3/4 in the case of any sentence greater than 10 years confinement. 

Post-Trial Actions:

Submission of Matters:  After the trial has been completed, the UCMJ provides a unique opportunity to challenge the findings, the sentence, and to request additional consideration from the convening authority before the case is forwarded for appellate review.  The accused, through counsel, receives a copy of the record of trial, and is permitted to

         1.  challenge legal errors in the records;

         2.  submit new facts not presented and trial, and

         3.  make requests for clemency, including disapproving findings and reducing, suspending or disapproving the sentence.  

These matters must be considered by the convening authority before he acts on the case. 

Response to Staff Judge Advocate’s Review:  Prior to the convening authority taking his final action on the case and forwarding it to the appellate courts,his chief legal advisor is required to conduct a legal review of the case and respond to matters raised by the accused in the submissions described above.  This must be served on the accused, and the accused has an opportunity again to respond to the recommendation and to submit additional matters. 

Appellate Action

After the convening authority acts, all cases involving more than one year confinement or an adverse discharge are subject to review automatically to the services’ Court of Criminal Appeals.  The accused has the right to detailed appellate counsel provided by the military, as well as the right to retain civilian counsel. 

For those cases that do not qualify due to length of confinement or discharge, the accused can submit an appeal to the Judge Advocate General of the service for review of the conviction and sentence.

What should you do?

The process describe above reveals a complex and challenging legal system that has its own subtle nuances separate and apart from the civilian system.  Navigating this system requires experience, understanding, and a aggressive approach to representation.  That is the type of representation that White & Meeks LLP can provide.

Manual for Courts-Martial (2012)