Military Court-Martial Basics
Here are the basics of military courts-martial for all military services, from initiation of charges through trial and post-trial process.
What is a court-martial?When a charge is brought against a member of the U.S. military, for a violation of the Uniform Code of Military Justice (UCMJ) it may lead to a summary, special, or general court-martial. A summary court-martial is for relatively minor offense that may be resolved informally. A summary court-martial “conviction” is not considered a criminal court conviction despite the name. A special court-martial involves a violation that is similar to a misdemeanor under civilian criminal laws, since a special court-martial (SPCM) conviction can result in up to 1 year of confinement. A general court-martial involves a violation that is similar to a felony, since a general court-martial (GCM) conviction can result in up to life imprisonment or death, with maximum sentences depending on the offenses charged. This discussion covers SPCMs and GCMs while you can read more here about summary courts-martial and Article 15 non-judicial punishment.
Preferral and Referral of ChargesA service member’s immediate commander, or a higher-level commander initiates a court-martial by preferral of charges against a military defendant, called “the accused.”. Once the charge has been brought, the accused has a right to representation from a free military attorney, called a detailed defense counsel, similar to a civilian “public defender.” This defense counsel may come from a legal service office at their command or a nearby installation, but may sometimes be located a remote distance from the accused. The accused can also can hire a civilian defense attorney, but they will usually need to pay for this attorney themselves
Even if they hire a civilian attorney, the detailed defense counsel will normally remain on their case and can assist the civilian attorney.
The service member’s commander who initiates the proceedings will have the opportunity to decide which level of court-martial would be appropriate, however, they may only make a referral of the charges to a court-martial within their own authority. For example, as the name suggests, only a General officer (i.e., at least a one-star General or Admiral) has authority to refer charges to a General Court-Martial. But before a commander can refer charges to a GCM, they must order a formal investigative hearing in accordance with Article 32, of the UCMJ. This hearing was formerly called an Article 32 Pretrial Investigation, and is now called a Preliminary Hearing, making more like civilian probable cause hearings.
Article 32 Preliminary HearingsThese are probable cause hearings conducted by a special hearing officer. They are provided automatically in cases that may be referred to a GCM, although a service member can waive this right to a hearing. There are some tactical reasons for which a defense attorney may recommend that an accused waive the preliminary hearing, but, generally, an accused should go through the hearing to learn more about the prosecution’s case.
At the hearing, the preliminary hearing officer will need to determine whether there is probable cause (meaning at least some evidence that may tend to prove guilt) that the accused committed the preferred offense or offenses. In addition to presenting evidence supporting probable cause, the prosecution must disclose any evidence that supports the defendant’s position. The accused and their attorney can participate in the hearing as they would at a full trial, presenting their own witnesses and evidence as well as cross-examining prosecution witnesses and pointing out problems with the prosecution’s evidence. The accused can submit any evidence that might suggest that the case should not be referred to a general court-martial, even if this evidence does not involve the charged offense. Ultimately, the hearing officer will make a recommendation as to whether the case should be referred to a court-martial trial, either SPCM or GCM, but this recommendation is not binding.
Court-martial trials and post-trial proceedingsAn accused service member technically has the right to a trial by a judge alone or a trial by a jury, but they should almost always choose a trial by a jury. This is because a jury may be more easily convinced of a service member’s innocence than a judge, who may be jaded after seeing dozens, if not hundreds, of other court-martial trials. While the commander will choose the jury pool, the prosecution and the defense will conduct the same screening process during jury selection that occurs in civilian criminal courts. (This is known as voir dire.) The defense attorney will seek to determine whether each prospective juror is unbiased and will apply a presumption of innocence. Jury members cannot be a lower rank than the service member, and enlisted service members have a right to a jury in which at least one-third of the jurors are also enlisted.
Each member of the jury has an equal voice, even if they do not have equal rank. At least two-thirds of the jury must agree that a service member is guilty. If less than two-thirds of the jury members feel that the service member is guilty, they must be acquitted.
If a service member is found guilty, they can produce additional witnesses and evidence to show extenuation and mitigation during the sentencing phase of the proceedings. Sometimes the service member will testify on their own behalf, but this is not required. The extenuation and mitigation phase is similar to the sentencing phase in a civilian criminal case.
After the court-martial trial or guilty plea, the convening authority will issue an order, approving the findings or guilt or innocence, and the sentence, or so much of the sentence as may be approved with any limitations of any pretrial agreement. The convening authority may also grant clemency to reduce parts of the sentence he or she approves. SPCM and GCM trials or guilty pleas that result in an approved sentence that include at least one year of confinement or a punitive discharge from the military service will automatically be sent to the appropriate service Court of Criminal Appeals for review.