Written by attorney Michael James Perillo Jr.

Military Law: Courts-Martial are Public Trials

In my experience, those unfamiliar with Court-Martial practice typically view military criminal trials with certain preconceived notions. Often, those preconceptions are based upon lack of familiarity with the system and are misplaced. One of many such instances of misperception concerns the court-martial as public trial. As most people know, civilian criminal courtrooms are open to the public. In some jurisdictions, civilian court proceedings are televised (the O.J. Simpson case comes immediately to mind). Any of us can simply walk into a courtroom in our local courthouse whenever court is in session. It might surprise you to learn that the same is essentially true of court-martial proceedings. Rule for Courts-Martial (RCM) 806 states: "Except as otherwise provided in this rule, courts-martial shall be open to the public. For purposes of this rule, "public" includes members of both the military and civilian communities." (emphasis added) The military judge has the power and the responsibility "to maintain the dignity and decorum of the proceedings" and in that regard, the judge may limit the number of those observers in the courtroom. The judge may also close the courtroom if "there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open." Before closing the courtroom, the military judge must make findings on the record justifying closure (see RCM 806 (b) (2). As an example, closure might take place in a trial involving national security interests. However, by rule closure must be "no broader than necessary to protect the overriding interest." If you desire to attend a court-martial proceeding it will be necessary to gain access to the base or post where the court will be convened. In that regard, check base/post procedures for public access in advance of the trial date. Military Trial Counsel and Detailed Military Defense Counsel will likely be helpful in providing you with this information, or at least directing you to proper authority for base security.

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