A court-martial is similar to a criminal trial in the civilian world, but with some very important distinctions. For one, it’s only used to address violations of the punitive articles (Articles 77 to 134) of the Uniform Code of Military Justice (UCMJ), a body of law that has no equivalent in the civilian criminal justice system. While the UCMJ covers crimes similar to those in the civilian justice system, such as robbery and assault, it also covers crimes that are specific to the military, such as missing movement, disrespecting a superior, and mutiny.
Anyone who is subject to the UCMJ can face a court-martial for violations of its punitive articles. While this typically involves Service Members in the various branches, there are times when the UCMJ can even reach beyond the military to retirees or civilians, although this is much less common.
How Is a Court Martial Initiated?
As with most things in the military, the court-martial process typically starts with a Service Member’s commanding officer (CO), who often has significant discretion when it comes to adverse actions. When a CO has probable cause that a violation of the UCMJ may have occurred, the CO can:
- Proceed with a court-martial;
- Impose non-judicial punishment instead of court-martial;
- Confine the Service Member for up to 72 hours as the CO further investigates.
If a CO chooses confinement at this early stage, the Service Member must be notified of the reason for the confinement. An arrest at this stage also starts the clock for a court-martial proceeding, which must commence within 120 days of arrest.
While a CO will typically initiate a court-martial, it can also be convened by the President, the Secretary of Defense, or the Secretary of the accused’s branch of service, although these situations are less common and typically involve higher profile cases.
Once a decision is made to move forward with the court-martial process, it technically commences with the “preferral of charges.” In simple English, this is when charges are read to the accused. Anyone subject to the UCMJ can read the charges, but this is usually done in the presence of a CO. At this point, legal representation for both sides (trial counsel and trial defense) are appointed as is the military judge who will preside over the court-martial.
Once charges are preferred, the trial counsel and defense counsel can then conduct additional investigation during a discovery period, which can include:
- Reviewing testimony and documents;
- Crime scene site visits;
- Obtaining additional testimony or depositions; and
- Consulting with experts.
However, this process cannot continue indefinitely because the 120-day clock is still ticking, which started either with an arrest or with the preferral of charges, whichever was first. If the 120-day deadline is violated, the accused can move for a dismissal of the case.
Pleas Available to the Accused
A Service-Member enters his or her plea after charges are preferred. There are a variety of pleas that can be made, such as:
- Not guilty;
- Guilty to a lesser included offense (not the actual charges brought);
- Guilty by exceptions (an admission of guilt, but challenging certain facts); and
- Guilty by exceptions and substitutions (guilt to one part of a specification but not another).
Also, where approved by the military judge and trial counsel, a Service Member can enter a conditional plea of guilty that may be withdrawn upon further review or appeal. If a Service Member enters a guilty plea, it will only be accepted if the military judge believes that the accused understands the charges and their elements as well as the consequences of a guilty plea.
Composition of Court-Martial
When a Service Member pleads not guilty and faces trial, a panel must be selected to decide the facts of the case, much the same way that a jury decides facts in a civilian case. The panel for a court-martial is selected by the convening authority and typically consists of commissioned officers. If the accused is enlisted, he or she can request that the panel include enlisted service members as well. The panel swears under oath that they will decide facts impartially.
During trial, trial counsel presents the case against the accused, calling witnesses and introducing evidence. Defense counsel may cross-examine the witnesses against the accused. Defense counsel then presents witnesses and evidence for the accused with trial counsel having the opportunity to cross-examine. The military judge rules on objections and instructs the panel before it deliberates. If the panel finds that an accused is guilty, then the process enters the sentencing phase where mitigation evidence can be presented.
Rights of the Accused
The military criminal justice process includes several important rights for the accused. Many of these are contained in Article 31 of the UCMJ which protects the accused against self-incrimination and which requires anyone interrogating the accused to advise:
- Of the nature of the accusation;
- That the accused does not have to make a statement regarding the offense; and
- That any statement may be used as evidence in a court-martial.
In addition to these rights, Service Members also have the right to free military-appointed counsel, or a civilian counsel at their expense. The UCMJ also protects against double jeopardy, or trying a Service Member for the same offense twice. However, this only applies at certain times and may not prevent a civilian authority from also prosecuting a crime in its jurisdiction.
An accused Service Member also has the right to appeal a guilty verdict to the military court of appeals. Appeals are automatic in cases involving the death penalty.
Who Can You Turn To?
While you may have access to free counsel through the military, there are many advantages to using a civilian attorney who specializes in military criminal law. First it’s important to note that there’s nothing preventing you from having two attorneys representing you. Having a civilian attorney in addition to a military attorney is like getting two for the price of one. Also, a civilian attorney may be able to devote more time and resources to your case as opposed to military defense counsel who often have heavy caseloads. In addition, civilian attorneys who specialize in military law often have more years of experience with court-martials. Finally, any civilian attorney you might hire does not operate under any chain of command and may have more freedom of action when it comes to representing you.
If you’re facing the prospect of a court-martial, or just have questions you need answered, the Law Offices of Haytham Faraj is here to help. With over 25 years of experience and an impressive track record, our office stands ready to protect your rights.