Military Law FAQs
If you are serving in the U.S. military, or if you have a family member in the military, you may be confused by the distinctive terms and concepts in military law. The differences between military law and civilian law are not as dramatic as they may seem, though. If you have been charged with a crime in the military, you still have important rights and options that you should understand. This page provides general answers to some basic questions that may arise from interactions with the military criminal justice system. However, you can consult a military lawyer or a civilian lawyer who handles military defense cases for more thorough guidance that is specific to your situation.
What is the Uniform Code of Military Justice?
What are the different types of courts-martial?
What are my rights when I am being investigated for or charged with a military crime?
What is an Article 32 hearing?
Will I be held in custody if I am accused of a military crime?
When can I see the evidence against me?
What is the difference between preferring and referring charges?
Can I resolve my case before trial?
Should I accept Article 15 penalties or request a court-martial trial?
Can I be charged in the military system if I violate the UCMJ while I am off the base?
Can I be convicted of the same crime in civilian and military courts?
Do I have a right to a free military lawyer?
Why should I hire a civilian lawyer if I have a free military lawyer?
The Uniform Code of Military Justice is the main set of laws that applies to the U.S. military. It is different from most U.S. laws because it applies outside the borders of the U.S. Contrary to widespread assumptions, the UCMJ applies in peacetime as well as war. The goal of the UCMJ is to preserve order and discipline in the military, while promoting the interests of justice. Many of the crimes defined in the UCMJ resemble ordinary civilian crimes, while others are specific to the military. The UCMJ also sets out certain procedural rights for military service members who are accused of crimes.
There are three types of courts-martial. Summary courts-martial are streamlined, non-judicial courts-martial that apply to Article 15 violations. The stakes are relatively low in these situations, and service members have more limited rights. Special courts-martial and general courts-martial are formal trials. Special courts-martial cover offenses that are similar to misdemeanors in civilian court, while general courts-martial cover offenses that are similar to felonies in civilian court. A summary court-martial conviction does not result in a criminal record, but a special court-martial or general court-martial conviction does. Since the penalties and other consequences are more serious in these two types of courts-martial, service members have greater protections.
Service members have many rights that are similar to the rights of citizens who are being investigated for civilian crimes. For example, they are protected against unreasonable searches and seizures, unless they consent to a search or seizure. They have a right to a free military attorney if they are facing a special or general court-martial, and they may hire a private attorney at their own cost. They have a right to a fair trial and a right to remain silent if their attorney is not present. Throughout the proceedings, they will be able to present exculpatory evidence, cross-examine the prosecution’s witnesses, and use other trial tactics commonly used by civilian defendants. They generally also have a right to appeal a conviction.
An Article 32 hearing applies in cases that could result in a general court-martial trial. It somewhat resembles a grand jury proceeding in the civilian criminal system, although it is not identical. Once a charge is brought against a service member, they have a right to have a special hearing officer conduct this hearing. It will address the question of whether there is probable cause to believe that they committed the crime charged. This will determine whether the service member’s commander refers the case to a trial. The prosecution will present evidence to support a finding of probable cause, but it also must submit evidence that supports the service member’s innocence. The service member and their attorney can present their own evidence and attack the prosecution’s evidence. Even if the case eventually goes to trial, an Article 32 hearing can be a useful way to learn about the charges and how the prosecution plans to prove them.
Possibly. A service member may be held in custody if there is probable cause to believe that they are a flight risk or a danger to public safety. These are similar considerations to those addressed in bail hearings in civilian courts. A key difference is that bail is not available in the military system. Sometimes a commander will place limitations on a service member that fall short of full confinement. They might require the service member to meet with their superior officer on a regular basis or restrict the areas of the base that they can access. Violating these limitations may result in confinement.
You likely cannot see the evidence against you during the course of a pending investigation in the military system. If you are only a suspect, your right to access the case file is limited. If charges are formally brought (preferred) against you, the prosecution will be required to share witness statements and other key evidence in the case with you.
Stating that a charge has been preferred against a service member simply means that it has been brought against them. Usually, their commander will prefer the charge, but any member of the military can prefer a charge. A charge is referred when the service member’s commander decides to take the case to a court-martial trial. For example, if the commander finds that the Article 32 hearing supports a finding of probable cause, they likely will refer the case to trial.
Just as the plea bargain process resolves most civilian cases before trial, most military criminal cases are resolved before a full court-martial trial. A case may be dismissed after the Article 32 hearing if there appears to be no probable cause. Or the service member and the prosecution may be able to work out an agreement during the pre-trial process before or after the Article 32 hearing. However, a service member should not be pressured into reaching an agreement, and their attorney does not have the right to reach an agreement without their approval.
This is a critical decision that should be evaluated according to the facts of the specific case. There are strong reasons to consider accepting Article 15 penalties. Most court-martial trials result in a conviction, and a service member may receive much harsher penalties than they would have received under Article 15. Also, Article 15 penalties will not result in a criminal record, as a court-martial conviction would. Accepting Article 15 penalties does not amount to an admission that you are guilty, unlike a guilty plea in civilian court. If you believe that you have a strong case for your innocence, however, you should ask an attorney about whether you should demand a court-martial trial.
Yes. As a member of the military, you must abide by its rules of conduct at all times. This includes periods of furlough or excursions off the base at which you are stationed. If you are caught by the local civilian police, they may conduct much of the investigation of the case. However, you will be prosecuted in the military system for a violation of the UCMJ because the civilian authorities do not have the power to enforce the UCMJ.
Yes. Double jeopardy does not apply in military courts because they are a separate system from civilian courts. This is similar to the concept of dual sovereignty between federal and state courts, each of which can prosecute a defendant separately without violating double jeopardy. Sometimes the military authorities will decide that additional punishments should be imposed to promote discipline.
You have a right to a free military lawyer if you are facing a special or general court-martial. Your right to an attorney extends through any appeal or post-conviction relief that you pursue. However, you do not have a right to a free military lawyer if you are facing a summary court-martial.
The difference between a free military lawyer and a civilian lawyer is similar to the difference between a free public defender and a private criminal attorney. Civilian lawyers who handle military defense cases tend to be more experienced than military lawyers. They also may have more manageable caseloads, which allows them to devote more time to developing each case. You will need to pay for a civilian lawyer, but this may be worthwhile if you are facing severe penalties. Your military lawyer will not automatically leave your case if you hire a civilian attorney. Thus, you can benefit from the combined knowledge, skill, and effort of two attorneys as they coordinate your defense.
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