This brief guide illuminates some of the steps servicemembers will face when they are charged with a crime under the UCMJ (Uniform Code of Military Justice).
Usually while a military member is under investigation they are completely in the dark. The service's investigators (Army-CID, Air Force-OSI, Navy/Marines-NCIS) usually do most of their investigation (and form an opinion) before they ever talk to the suspect, which they call the subject for their report. The subject may get an idea that they have been asking around from friends or co-workers, but they might have been warned not to talk to the subject. While every case is different, this is generally the point at which the subject should reach out to an attorney. It is usually best to exercise your right to remain silent until you have spoken with your attorney about what to do.
When the investigation is complete, the subject's commander will get a copy of the report. So will the JAG (Judge Advocate General) Office. The lawyers and the commanders will discuss the way ahead. Sometimes investigations lead to non-judicial punishment (commonly referred to as Article 15s - referencing the UCMJ) or even lesser actions such as letters of counseling or reprimand. On occasion investigations lead to court-martial charges. If a subject of an investigation has charges "preferred" upon him or her, they need a lawyer. Military members are given defense counsel free of charge who will assist through the court-martial process. They also have the right to hire a civilian counsel who will work with the assigned military lawyer to protect their rights and fight for them. This is when the accused, along with their counsel will start to learn about the evidence against them. They will also learn what type of court-martial they are facing.
There are three types of courts-martial - Summary, Special and General.
A Summary Court Martial cannot try an officer, cadet or midshipman. The accused must consent to the Summary Court. There will be no judge or jury, instead a "Summary Court Martial Officer" will be appointed to act as a judge would, and will make the finding of guilty or not guilty and determine the sentence if necessary. The sentence cannot include confinement for more then one month.
A Special Court-Marital is often referred to as similar to misdemeanor court. While there are some similarities, the military does not designate crimes as misdemeanors or felonies. A Special Court-Martial will have a military judge and may include a jury of at least 3 fellow servicemembers called "court members" at the discretion of the accused. An enlisted service member can be sentenced to up to a year in prison and a bad conduct discharge at a Special Court-Martial.
A General Court-Martial is the most serious type of court-martial a servicemember can face. There will be a military judge presiding and, if chosen, a jury of at least 5 military members. Based on the maximum punishment for the charges a military member is facing, the accused can be sentenced to years in prison and discharge from the service (up to a Dishonorable Discharge for enlisted members and a Dismissal for officers).
Military trials have many things in common with civilian trials like those you may have seen on tv or in the movies. There is jury selection, called voir dire, where the lawyers from both the prosecution and the defense have an opportunity to ask questions of the military members that have been selected for the panel. They may challenge court members for cause if they find a reason that member cannot properly sit on the panel. There is also one peremptory challenge allowed per side, where no reason is given for why a member is released from the jury.
There is then opening statements from both sides followed by the presentation of evidence. Witnesses are called and evidence is entered, following the Military Rules of Evidence (MRE) which are similar to the Federal Rules. Witnesses are sworn in, examined and cross examined. In military practice, the military judge and the court members have the opportunity to ask questions that they feel weren't asked by the prosecution or defense.
There are closing arguments, instructions are given to the court members on what there are required to do in making their determinations, as well as the procedures to follow. After deliberations the verdict is read. If the accused was found guilty of any charge there will be a sentencing phase, where the same jury will determine the sentence after more evidence is presented in aggravation and mitigation.
If the accused had elected to go without a jury, or "military judge alone," the process is essentially the same, without voir dire or jury instructions. The same judge who determines whether the accused is guilty or not guilty will then determine the sentence if needed.
Military members generally have the right to appeal the findings and/or sentence.
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