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Behind The Scenes Of Military Courts-Martial: Understanding The Process

By Stephanie Kral | October 2, 2023

Military courts-martial are unique legal proceedings that are used to address violations of military law and maintain discipline within the armed forces. They operate differently from civilian courts, with their own set of rules and procedures.

What are Military Courts-Martial?

Military courts-martial are used to try military personnel who are accused of committing offenses under the Uniform Code of Military Justice (UCMJ). The UCMJ is a federal law that governs the conduct of members of the United States Armed Forces and provides a comprehensive set of rules and regulations for military justice.

Violations of the UCMJ are considered crimes, even for things that would result in nothing more than being fired if the person were a civilian. For example, falling asleep on watch is a crime in the military, but falling asleep at your desk as a civilian is not.

There are three types of courts-martial: general courts-martial, special courts-martial, and summary courts-martial. General courts-martial are the most serious and are used to try the most severe offenses, including capital crimes. Special courts-martial are used for intermediate-level offenses, while summary courts-martial are used for minor offenses.

A summary court-martial is essentially like nonjudicial punishment, but with more due process and higher potential punishment. A summary court-martial does not result in a conviction.

The legal process of military courts-martial begins with the investigation of an alleged offense. Once an investigation is completed, the case may be sent to a convening authority, who has the power to decide whether to proceed to trial or take other action. As of December 2023, there are a subset of “covered offenses” that are exclusively within the jurisdiction of the Office of Special Trial Counsel to determine whether they proceed to trial or not. The chain of command is not involved in those decisions.

What happens when charges are preferred?

“Preferral” of charges [Am I Being Charged?] is the first step in a court-martial.

In the Army and Air Force, it is usually a member of the chain of command who prefers charges, such as a Company Commander or Squadron Commander. The Soldier or Airman is called into their office, formally reports with proper reporting procedures, and has the charges read to them. They are then dismissed, provided the preferral documents, and sent to Trial Defense Services or the Area Defense Counsel.

In the Navy and Marine Corps, the Sailor or Marine is usually taken to their command legal representative, such as the Legal Officer, JAG, or Adjutant, where they are given the charge sheet that has already been signed and sworn by personnel in the prosecutor’s office. It is then the command’s responsibility to request counsel through the Defense Service Office, and the accused is notified when they get an attorney appointed to them.

Does everyone get an Article 32 hearing?

Article 32, UCMJ, requires a preliminary hearing before charges are referred for a General Court-Martial. If you’re facing only a Special Court-Martial, charges can be preferred and referred without the Article 32 hearing.

The accused has a number of rights at an Article 32 hearing, including the right to counsel, the right to object to evidence and cross-examine witnesses, and the right to present evidence. The strategy we take at an Article 32 hearing depends on the evidence and our goals. KMD has had success with getting cases either dismissed or referred to a Special Court-Martial rather than a General Court-Martial.

What is an arraignment?

An arraignment is the first hearing of the court-martial process. The accused appears before the military judge. The military judge reads the accused certain rights, such as their right to be represented by a Civilian Defense Counsel or their appointed military counsel, or both. The judge will also cover their rights to select whether they are tried by a panel or the military judge alone.

After discussing a number of other rights, the military judge will say “Accused and Defense Counsel, please rise.” They will state the name of the accused, then ask, “How do you plead?” At that moment, the accused has been arraigned.

The military judge does not expect or require a plea to be entered at that time. During the arraignment, the Court will set certain dates required for different trial milestones, one of which is the choice of plea and forum. Those choices will be memorialized after arraignment and by the date set in the Trial Management Order or Scheduling Order.

What happens in between court-martial trial dates?

Discovery is one of the biggest “behind the scenes” parts of a court-martial. The military court-martial discovery process refers to the pre-trial stage where the prosecution and defense exchange information and evidence relevant to the case. The requirements for the defense to provide information are much less robust than what is required of the prosecution.

The defense first makes a request to the Government for the information the defense wants, such as witness statements, physical evidence, training records, and anything else relevant and necessary to the preparation of the defense. The prosecution may object to these requests, and the defense can file a motion with the Court to compel the prosecution to provide the discovery to the defense.

During this time, the defense will also be doing things like interviewing witnesses and requesting experts that the defense needs. There are a large number of types of experts that can be involved in the court-martial process, including DNA analysts, forensic psychologists, digital forensic analysts, and Sexual Assault Nurse Examiners.

KMD is very active and aggressive during the discovery phase of trial. We work with our clients to identify what potential witnesses and evidence we may need. We also use the discovery process to develop a trial strategy. Having an experienced defense counsel can make a huge difference during this phase of trial.

What happens at a court-martial motions hearing?

Each side in a court-martial can file “motions” with the Court. A motion is a request from one party asking the Court to make a decision on a certain issue before trial starts. Some types of motions are:

  • Motion to Compel Discovery
  • Motion to Compel Experts
  • Motion to Exclude Evidence
  • Motion to Suppress
  • Motion to Dismiss

Each motion addresses a certain topic. For example, if law enforcement did not properly read the accused their Article 31(b) rights, then the defense can make a motion to suppress that statement. If the Court agrees, then the prosecution does not get to use the statement in trial.

Recognizing issues and deciding what motion to file takes experience and skill. The outcome of motions hearings may change the direction of the court-martial.

What are the differences between military and civilian trials?

Trials in military courts-martial are similar to civilian trials in many ways, but there are some key differences.

One notable difference is the composition of the court. Military courts-martial are composed of military officers, or officers and enlisted if the accused chooses, rather than civilian jurors. The accused also has the option to request a trial by judge alone, without a jury. The rules of evidence in military courts-martial are also slightly different from civilian courts, although they generally adhere to similar principles.

During the trial, both the prosecution and defense present evidence and witnesses, and the accused has the right to confront and cross-examine witnesses. After all the evidence has been presented, the court deliberates and reaches a verdict. If the accused is found not guilty, the trial is over.

If the accused is found guilty, the court will then immediately proceed to the sentencing phase, where the accused may be sentenced to a variety of punishments. This is different than the civilian system where there is generally a substantial amount of time between findings and sentencing. It is also why it is so important to prepare for sentencing, even if the goal is to get a not guilty verdict.

Find a military defense attorney who is right for you.

The team at Kral Military Defense is here to fight for you. We rely on our experience, while also thinking creatively and aggressively defending your rights. Contact KMD today for a free consultation.