When a charge is brought against a member of the U.S. military, it may lead to a summary, special, or general court-martial. A summary court-martial is based on an Article 15 violation, which is relatively minor and may be resolved informally. A special court-martial involves a violation that is similar to a misdemeanor under civilian criminal laws. A general court-martial involves a violation that is similar to a felony. This discussion covers special and general courts-martial, while you can read more here about summary courts-martial and Article 15.
Most often, a service member’s commander brings the charge, but it can be brought by any member of the military. Once the charge has been brought, the service member has a right to representation from a free military defense attorney. They usually will be able to receive the assistance of a specific military defense attorney whom they prefer if that attorney is available. The service member also can hire a civilian defense attorney, but they will need to pay for this attorney. Even if they hire a civilian attorney, the military attorney will remain on their case and can assist the civilian attorney.
Preparation for Trial
The service member’s commander will have the opportunity to decide which level of court-martial would be appropriate. They will need to conduct an informal investigation before they can refer a case to a special court-martial, and they will need to conduct a formal investigation before they can refer a case to a general court-martial. Sometimes, after an investigation, the commander will drop the case or reclassify the charge for Article 15 discipline.
Otherwise, each side will prepare their witnesses and evidence for trial. The prosecution will bear the responsibility for making sure that witnesses for both sides attend the trial, and the military must cover the costs of attendance for any witnesses. As in a civilian criminal court, each side can file pre-trial motions to try to resolve certain issues before trial.
Article 32 Proceedings
These are probable cause hearings conducted by a special hearing officer. They are provided automatically in cases that would result in a general court-martial trial, although a service member can waive this right. There are very few possible reasons to waive the right, so a service member generally should go through the Article 32 hearing to learn more about the prosecution’s case.
At the hearing, your commander will need to determine whether there is probable cause that you committed the charged offense. In addition to presenting evidence supporting probable cause, the prosecution must disclose evidence that supports the defendant’s position. The service member 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. You 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, but this recommendation is not binding.
The service member’s commander will choose the hearing officer and the other court members, and they also will make the final decision on whether the case should be referred to a court-martial trial. While this concentration of authority in the commander can lead to unfair results, both the attorney for the service member and the judge at the court-martial are independent of the commander’s unit. This can help reduce the risk of undue influence.
A service member technically has the right to a trial by a judge or a trial by a jury, but they should almost always choose a trial by a jury. This is because a jury is much more likely than a judge to have sympathy for the service member. 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 share their rank.
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, except in death penalty cases, which require a unanimous agreement. If less than two-thirds of the jury members feel that the service member is guilty, they must be acquitted. There are no hung juries and retrials.
If a service member is found guilty, they can produce additional witnesses and evidence during the extenuation and mitigation 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. If they pleaded guilty and were not tried on the substance of the crime, the service member may be able to reach an agreement with the prosecution on the penalties that they will face. This is similar to a plea bargain in a civilian criminal case. However, a service member still might receive a more lenient sentence from the jury, and the deal with the prosecutor is not binding.