I. The Law The military justice system, including but not limited to courts-martial, is governed by the Uniform Code of Military Justice, or UCMJ. The UCMJ, 10 U.S.C. § 801 et seq., contains a penal code known as the “Punitive Articles” as well as jurisdictional provisions and procedural rules. The penal code includes both generic common law crimes such as murder, theft, illegal drug use, and battery, and military-specific offenses like desertion, disobeying an order, and insubordination. The UCMJ was enacted in 1950 in response to post-World War II criticism of the harshness and unevenness of the military justice system during the war, and is widely considered to be a fair and modern, if imperfect, legal system. While the UCMJ has undergone many revisions since 1950, including significant revisions in 1968 and 1983, the basic structure of the military justice process has remained largely unchanged since then.
In addition to changes to the UCMJ legislated by Congress, the President is empowered by Article 36, UCMJ, (10 USC § 836) to prescribe rules for courts-martial through Executive Order. These orders implement pretrial, trial and post-trial procedures, including rules of evidence. All of the laws related to courts-martial, including the UCMJ, the Rules for Court-Martial (RCM), and the Military Rules of Evidence (MRE), are combined into a single volume known as the Manual for Courts-Martial, or MCM, which is the basic handbook for military justice practitioners. Additional guidance in the form of jury instructions, is contained in the Military Judge’s Benchbook, D.A. Pamphlet 27-9, a manual published by the U.S. Army but used by all the services.
II. The Key Players
Although every major military installation has a permanent courtroom where courts-martial are held, because of the relative infrequency of courts-martial, military bases do not have permanent standing courts-martial. Rather, courts-martial are convened, as necessary, by senior military commanders who are designated as court-martial convening authorities. Convening Authorities have a unique role in the military justice system which has no counterpart in the civilian criminal justice system. Although the military justice system has many similarities to the criminal justice system, in theory at least, the primary purpose of the military justice system is to maintain good order and discipline within the military. Because military commanders are responsible for maintaining the good order and discipline of their troops, the UCMJ gives military commanders a significant degree of control over courts-martial.
Each service has a cadre of military judges, typically field grade JAG officers. Military judges are not permanent judges. Typically, an assignment to serve as a military judge is a two or three year assignment in the career of a Judge Advocate, although some JAGs will serve multiple tours as judges. When charges are formally referred to a special or general court-martial, a military judge will be detailed, or assigned, to the case.
Staff Judge Advocates
Every Convening Authority has a legal staff. The senior member of the legal staff is called the Staff Judge Advocate or SJA. The SJA advises the Convening Authority at several stages of the court-martial process, often through formal written advice required by the Rules for Courts-Martial. Although theoretically neutral, the SJA is typically associated with the prosecution, because the SJA supervises, or is in the direct chain of supervision of, the assigned trial counsel (prosecutors).
Trial counsel are the prosecutors, typically younger JAG officers in their first few years in the military. In important cases, more experienced prosecutors, known as senior or regional trial counsel or similar titles, will be requested by the SJA or may assign themselves to the case as lead counsel.
The military provides free military defense counsel known as area defense counsel, or trial defense services, or a similar title. These counsel are usually Captains (or Lieutenants in the Navy) with one or two base level tours in the legal office under their belt, but may be fresh out of law school. In serious cases, senior or regional defense counsel may also be detailed to assist the local military public defender. Military defense counsel vary widely in their skill and experience level. For this reason, and others, military accused frequently hire outside civilian counsel to replace or augment their military defense counsel.
III. Types of Courts-Martial
There are three kinds of courts-martial: summary courts-martial, special courts-martial and general courts-martial. Summary Courts-martial are used to deal with minor offenses, and have a maximum confinement sentence of 30 days. Special-courts may impose punishment of up to one year in confinement (or whatever the statutory maximum punishment is for the offenses, whichever is less) and may also impose a bad conduct discharge on enlisted members, if authorized for the offense(s) of which the accused is convicted. General courts-martial are generally used for more serious felonies and may impose up to the statutory maximum authorized for an offense, up to and including a death sentence or life imprisonment without parole for the most serious offenses -- premeditated murder and felony murder. General courts-martial may also adjudge a bad conduct or dishonorable discharge for an enlisted member and may punish an officer with dismissal. All three types of courts may reduce an enlisted member’s rank, or grade all the way to the lowest enlisted grade E-1. In contrast, an officer cannot be demoted by a court-martial. Because of the higher potential punishments, the rights of the servicemember and due process afforded increase for each type of court-martial.
A summary court is a simplified procedure for the resolution of charges usually involving minor incidents of misconduct, such as a single use of drugs, petty theft, or a brief AWOL (absence without leave). The summary court-martial consists of one officer, who acts as both judge and jury. The summary court officer, may be, but is not required to be a military lawyer, known as a Judge Advocate or “JAG”.[i] Officers may not be tried by summary court and the punishment options for non-commissioned officers (enlisted grade of E-5 and above) are quite limited[ii], so summary courts are generally used only to punish junior enlisted personnel. The accused (the military term for defendant) is not entitled to legal counsel in a summary court-martial, although one is frequently provided anyway. Because the court-martial offers no jury, and no right to counsel, the accused must consent to be tried in this forum. Because of the lighter range of punishments available, and because a summary court conviction is not considered a federal criminal conviction, most accused’s consent to be tried in this forum. The maximum sentence which can be adjudged in a summary court is confinement for 30 days, forfeiture of two thirds pay for one month, and reduction to the lowest enlisted pay grade for grades E-4 and below.
A special court-martial is the military’s intermediate-level court. It consists of a military judge, one or more prosecutors (known as trial counsel), at least one defense counsel, and a panel of members, or jury. A special court panel must have at least three members. By default, all panel members will be officers. However, an enlisted accused may request that enlisted members be appointed as members, and is entitled to have a court composed of at least one-third enlisted personnel. If enlisted members are requested by the accused, the Convening Authority will either add enlisted members to the panel, or, more likely, substitute enlisted members for some of the officers previously appointed. The panel members must be senior in grade, or at least time in service, to the accused.[iii] The accused may request trial by judge alone, and is often required to do so as a condition of a pretrial agreement (the military term for plea bargain). Regardless of the offense(s) involved, a special court-martial may not impose a sentence greater than one year confinement, or the statutory maximum, whichever is lower. A special court may also impose up to forty-five days of hard labor without confinement, forfeiture of two-thirds basic pay per month for one year, reduction in rank to the lowest enlisted grade and a bad-conduct discharge (for enlisted personnel). An officer accused in a special court-martial cannot be demoted, dismissed from the service or confined. Thus, officers are rarely tried in special courts-martial.
A general court-martial or GCM is the most serious type of military trial. The composition is the same as a special court-martial, with one exception. The panel of members, or jury, must have at least five members, unless it is a capital court-martial, in which case there must be at least twelve members. Enlisted accuseds are entitled to at least one-third enlisted members upon request. The accused may waive the right to a jury trial and elect trial by judge alone, except in capital cases. In a general court-martial, the maximum punishment is the cumulative statutory maximum for each offense of which the accused is convicted, and may include death (for a small group of the most serious offenses), confinement up to life with or without the possibility of parole, a dishonorable or bad-conduct discharge for enlisted personnel, a dismissal for officers, and a number of other lesser forms of punishment.
The procedure for a general court-martial is identical to a special court-martial with one exception: unless waived by the accused, a pretrial investigation under Article 32, UCMJ, must be conducted before a case may be referred to a general court-martial. Capital general courts-martial also have additional procedural requirements.[iv]
IV. Article 32 Preliminary Hearings The old Article 32 Hearing has been replaced with the Preliminary Hearing
The Fifth Amendment guarantees that “No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces.” What this means is that, unlike in federal courts and in some state courts, there is no right to a grand jury indictment for military members. Nor is there a right to a preliminary or probable cause hearing in front of a judge, as occurs in states that do not utilize grand juries. Instead, when a General Court-Martial is contemplated, Article 32 of the Uniform Code of Military Justice (10 USC § 832), requires a “thorough and impartial investigation” of the charges and specifications by a military officer. (A charge refers to the the specific numbered article of the UCMJ that was violated, a specification alleges a specific count or violation of that article.) Although often called the “military equivalent of a grand jury,” in truth, the Article 32 hearing is very different. The Convening Authority, a senior military commanding officer, will appoint a Preliminary Hearing Officer (PHO), who will set the time and place of the hearing. The PHO is almost always an experienced JAG officer, and, in very serious cases, may be a military judge (although they are not acting as a Judge in the Article 32 hearing). The accused does have the right to waive the Article 32 investigation requirement, but even if waived, the Convening Authority may still choose to order an investigation. Often, waiver of the Article 32 investigation is made a condition of a pretrial agreement (plea bargain) as waiving the hearing saves the government time and money.
The PHO Officer must answer these questions:
Is there a reasonable basis (probable cause) to believe that the accused committed the offenses alleged?
Have the offenses been properly charged, or do they need to be amended?
Are these offenses serious enough to warrant trial by General Court-Martial, or would some lesser form of court-martial (Special or Summary) or alternative to a court-martial (such as non-judicial punishment or an administrative discharge) be a more appropriate way of handling the alleged misconduct?
In practice, there is often a fourth component of a Preliminary Hearing:
a consideration of whether additional charges should be preferred based on new evidence discovered after the initial charges were preferred.
At the hearing, the Government Representative/Trial Counsel (prosecutor) may call witnesses who will testify under oath, or they may simply present documents, such as sworn statements, photographs, and police reports, or other evidence (such as audio or video recordings) tending to prove the charges. The prosecutor typically conducts the initial direct examination, but the PHO may also question the witness directly. The defense is entitled to cross-examine the witnesses.
Formal rules of evidence, such as limitations on hearsay, do not apply at preliminary hearings, with some exceptions, such as for privileged information. However, the defense may raise, and the Investigating Officer may comment upon, evidentiary issues that are likely to impact the government’s ability to prove the case at trial. For example, if the accused made a confession without a rights advisement, that statement may be offered at the Article 32 hearing, but the Investigating Officer will likely note that the statement may not be admissible at trial.
Article 32 hearings are generally open to the public and media to attend, with some limited exceptions, such as to protect the privacy of certain kinds of victims.
The defense is under no obligation to do anything at an Article 32 hearing. In that sense, the preliminary hearing may serve primarily as a means of pretrial discovery to learn about the government’s case against the accused. However, at the election of the accused, the defense may call witnesses and introduce evidence, cross-examine government witnesses, and offer oral or written commentary. The accused has the right to remain silent or may offer sworn testimony or an unsworn statement in defense, mitigation or extenuation. The defense also has an opportunity to submit objections to the PHO's Report of Investigation once completed.
The basic order of events at an Article 32 hearing is as follows:
The Preliminary Hearing Officer (PHO) will announce the opening of the hearing and its purposes
The PHO will advise the accused of his or her right to counsel and ascertain whether the accused will be represented by counsel, and if so, by whom
The PHO will read (or more likely summarize) the charges preferred against the accused
The PHO will advise the accused of his or her rights under Article 31, UCMJ
The prosecutor will provide the documentary or real evidence to the PHO
The prosecutor may call any available adverse witnesses
The prosecutor may provide records from the accused’s military personnel file for the PHO’s review
The defense may call available favorable witnesses for the accused and/or offer documentary or other real evidence in defense, extenuation or mitigation
The accused may testify or offer an unsworn statement
Defense Counsel and the Prosecutor are sometimes given the opportunity to offer argument/commentary on the evidence
The PHO will then close the hearing.
The PHO will then prepare the report of investigation.
Report of Investigation
The PHO's Report of Investigation may be quite long and comprehensive or may offer only cursory analysis. The only required elements of the report are as follows:
Names and organizations or addresses of defense counsel and whether they were present throughout the taking of evidence, or if not, why not
The substance (either a verbatim transcript or a summary) of any witness testimony taken
Any other statements, documents, or matters considered by the PHO
A statement of any reasonable grounds for belief that the accused was not mentally responsible for the offense, or was not competent to participate in the defense during the investigation, or there is a question of the accused’s competency to stand trial
A statement whether the essential witnesses will be available at the time anticipated for trial or a statement why any essential witness may not then be available
An explanation of any delays in the investigation
The PHO’s conclusion(s) whether the charges and specifications are in proper form
The PHO's conclusion(s) whether probable cause exists to believe that the accused committed the offenses alleged
The recommendations of the PHO, including disposition of the charges
Upon completion, the report is forwarded to the commander who directed the investigation for a decision on disposition of the offenses. The accused must be served with a copy of the investigative report and any attachments thereto. Within five days of receipt, the accused (through counsel) may submit objections or comments regarding the report to the commander who directed the investigation.
Recommendations Only It is important to note that the recommendations of the PHO are not binding in any way upon the Convening Authority, but are merely advisory in nature. The Convening Authority has complete discretion to ignore the advice and recommendations of the PHO, however sound they may be. For example, a PHO may recommend dismissing charges that the government can’t prove at trial, but the Convening Authority may refer those charges to trial anyway. In fact, several times when I have served as a PHO, I have recommended dropping weak charges, only to be overruled by the Convening Authority. (I was always proved right in the end – the accused was always acquitted of the charges I recommended dismissing.) Several times, I have seen Convening Authorities decide to refer weak charges to trial for political or public relations reasons. For example, a Convening Authority may be reluctant to dismiss sexual assault charges even when the evidence is very flimsy, out of concern for being seen as soft on sexual assault, or unsupportive of sexual assault victims. In other cases, the Convening Authority may get conflicting advice from his or her own Staff Judge Advocate (senior legal adviser) and may choose to follow the advice of the SJA over the recommendations of the PHO.
V. Differences Between Civilian Criminal Courts and Military Courts (Courts-Martial).
A person observing a general court-martial and a felony trial in state or federal court would notice few differences in the conduct of the trial, aside from the fact that the jurors, attorneys and accused are all in military uniform.[v] The basic order of trial is identical: jury selection/opening statements, prosecution case in chief, defense case in chief, rebuttal evidence, if any, followed by closing argument and instructions to the jury, jury deliberations and announcement of the verdict.
However, there are a number of other differences which may not be immediately evident.
First, with the exception of cases in which capital punishment is imposed, a unanimous jury is not required to convict. Rather, only two-thirds concurrence is required. Where court panels are not divisible by 3, the level of concurrence required is rounded up. Thus, in a five member panel, four votes are required to convict. In sentencing, two-thirds concurrence is required to agree on a sentence, although 3/4 concurrence is required for sentences of confinement of ten years or more and a unanimous jury is required for a death sentence.
Another difference is the manner in which jurors, or court-members, are selected. Initially, the Convening Authority appoints court-members to the panel from among available officers (typically, those assigned at the installation where the court-martial is to take place). If enlisted members are requested by the accused, the Convening Authority appoints these members as well, often excusing some of the officers previously selected. The Convening Authority will typically appoint extra members in the event that some are excused through challenges for cause or peremptory challenges. Thus, for a general court-martial, which requires a minimum of five members, the Convening Authority is likely to initially appoint at least nine or ten members.
Under court-martial rules, both the prosecution and defense are entitled to question (voir dire) the panel members, and each side is granted unlimited challenges, or strikes, for cause. However, unlike state or federal courts, each side is permitted to exercise only one peremptory challenge (where no reason has to be offered for seeking to remove the juror).
Probably the biggest difference between civilian criminal trials and courts-martial is in the sentencing phase of the trial. In most federal and state criminal trials, the jury is the fact-finder in the guilt/innocence phase, but the judge determines the sentence, often utilizing sentencing guidelines that are intended to ensure similar punishments for comparable crimes. But in a court-martial, if the accused chooses a trial by members, the members will also determine the sentence. And there are no guidelines to ensure consistency in punishment. Rather, the members will be advised by the judge of the authorized range of punishments and the members will choose whatever punishment they see fit. With few exceptions,[vi] offenses under the UCMJ do not have mandatory minimum punishments; so in the majority of cases, the members have total discretion regarding the sentence, and they are not required to impose any punishment at all. Because the range of sentences is so wide open, having an effective defense counsel during the sentencing stage of trial can have a huge impact on the sentence you receive. Courts-martial also offer a broader range of sentencing options than in civilian courts, including reprimands, reduction in grade, a fine, forfeitures of pay and allowances, hard labor without confinement, restriction to the base, punitive discharges (for enlisted), and dismissal (for officers). Another difference between military and civilian sentencing is that the UCMJ does not include any sentence enhancements or increased punishments for repeat offenders. This may be because there are so few repeat offenders in the military, as anyone who commits a serious offense is typically discharged either punitively or administratively before they get a chance to commit another serious offense.
VI. The Verdict: Not the Final Word
Convening Authority Action and Clemency
A final difference between courts-martial and civilians is that any guilty verdicts and any sentence imposed, whether by the military judge, or the jury, is only a recommendation. The Convening Authority has the absolute discretion to approve or disapprove the findings and the sentence or to set aside (nullify) any portion thereof, and/or suspend or reduce any portion of the sentence. The Convening Authority must take action on the findings and sentence. The good news is that the Convening Authority cannot increase a sentence or convert a not guilty finding to guilty, but may only act in a way which benefits the accused. This power to set aside verdicts and mitigate sentences is called the power of clemency. This is a power much like the power of state governors to grant clemency or the President to grant a pardon. An accused who is convicted of a crime always has the right to submit matters in clemency to the Convening Authority to try to convince the Convening Authority to grant some relief from the verdict or sentence. These matters may include assertions of errors during the trial or may simply be pleas for leniency, or both. The submission of clemency matters is another phase of trial where an effective defense counsel can have a major impact on the final outcome.
Once the Convening Authority has acted, in any case in which significant punishment (bad conduct discharge, dishonorable discharge, dismissal or one year or more in confinement) was adjudged and approved, the convicted servicemember has an automatic right to appeal to the service Court of Criminal Appeals.
Appeals to the Court of Appeals of the Armed Forces (CAAF) and to the U.S. Supreme Court are also possible in some cases, but most such appeals are discretionary, that is, it is usually up to the Court itself to decide whether to hear the appeal. There is generally no automatic right to a second appeal.
[i] The acronym JAG stands for Judge Advocate General, the title of the senior military lawyer in each service, who is a General officer. All subordinate Judge Advocates are part of the Judge Advocate General’s Corps, or JAG Corps, and are frequently referred to as JAG officers or just JAGs. The JAG Corps also includes enlisted military paralegals, and civilian employees.
[ii] Non-commissioned officers, those in the rank of E-5 or above, may only be reduced one rank by a summary court, or have their pay docked for one month. No confinement or hard labor without confinement is authorized.
[iii] This is because, by military tradition, a junior, or subordinate military member would not impose punishment on a senior member.
[iv] The additional procedures for capital cases are set forth in Rule for Courts-Martial 1004.
[v] The Judge may wear a uniform, or may wear a black robe, depending on the custom of the service.
[vi] Premeditated murder and felony murder under Article 118 clause (1) and (4) require a mandatory sentence of life with the possibility of parole. But even this theoretical mandatory minimum may be disregarded by the Convening Authority in the clemency process.