The military court-martial process is governed by the Uniform Code of Military Justice. The process begins with a charge being “preferred” (initiated) against you. Technically, anyone in the military with direct knowledge of another person’s wrongdoing can “prefer” a charge, but most often, it is your commander who will prefer charges against you.
This article discusses preferred charges that lead to a special or general court-martial. For information about summary court-martial proceedings, read Nolo's article on the Article 15 Disciplinary Process.
Before the Court-Martial Trial
Before the trial begins, you have the right to hire counsel, have a probable cause hearing, and request witnesses.
Right to Counsel
You have the right to be assigned (in military jargon, “detailed") military defense counsel (called a Judge Advocate) as soon as a charge has been preferred against you. Defense counsel is assigned to you by a trial defense service that is not under the control of the person who has preferred the charges.
If you know of a Judge Advocate that you would like to use, you can specifically request that lawyer. As long as it is reasonable for this lawyer to be available to you, your request should be granted.
You also have the right to hire a civilian attorney, but you will have to pay the attorney's fee. Getting quality civilian representation can be quite costly. Even if you hire your own civilian lawyer, the military defense lawyer will still stay on your case unless you dismiss him or her. You should not, however, dismiss the military defense lawyer casually; in fact, you should rarely do so. The military lawyer can help your civilian lawyer and keep your attorney’s fees down.
Level of Court-Martial
After charges are “preferred” and you obtain a lawyer, the next step is either a:
- determination of the level of court-martial to “refer” the case to (special or general)
- reduction of the charge so it can be resolved through an Article 15 punishment, or
- dismissal of the charges.
If your commander wants the case to go to court-martial, she or he will have to conduct an investigation before “referring” the case for trial. An informal investigation will suffice if your case is being referred to special court-martial. But a formal investigation is required prior to a general court-martial.
Article 32 Proceedings (Probable Cause Hearing)
Article 32 of the Uniform Code of Military Justice provides you with the right to have a probable cause proceeding before a general court-martial trial can be conducted. This is a hearing conducted by an Article 32 hearing officer. The prosecutor must present evidence showing probable cause that you committed the offense. The prosecutor is also required to submit any evidence that is favorable to you.
You don’t have to participate actively in this hearing but you have the right to, either with military counsel or private counsel. You have the right to have your attorney cross-examine the prosecutor’s witnesses, challenge evidence, call your witnesses, and present your own evidence.
Any evidence that may help persuade the commander not to refer the case to a general court-martial can be submitted. This evidence doesn’t have to be only that which is related to the charged offense.
You have the right to waive an Article 32 hearing but it isn’t a good idea to do so. It can be helpful to have the prosecutor’s witnesses testify so you can find out before the trial what you are up against.
At this stage, your commander has enormous influence. The commander gets to choose the Article 32 hearing officer, select the court members (meaning, the jury), and decide whether the case should go to trial. Your commander may also seek to influence the trial proceedings through the staff judge advocate. This sort of influence is still unfairly impacting court-martials trials, but two changes have lessened the power of commanders to do so. One is the fact that your defense counsel is not appointed by your commander but by an independent trial defense service, and the other is having a judge who is independent of your unit to preside over the proceedings.
Before the trial, just like in the civilian setting, both lawyers will prepare evidence and witnesses and file pretrial motions if needed. The prosecutor (also called trial counsel) is obligated to arrange for all witnesses for both the defense and the prosecution to be available at the trial. The government also has to pay the cost of bringing witnesses to the trial, including expert witnesses. This is important because expert witnesses can otherwise be extremely expensive.
The Court-Martial Trial
The trial will either be before a military judge alone or before a jury (called court members). Even though judges are technically required to be unbiased, they rarely acquit a defendant in a court-martial proceeding. This means that you want to elect to have a jury trial instead. There would have be some very extreme reason to waive the jury trial and go with the judge alone.
Selection of the Court-Martial Jury
The commander gets to choose the members of the jury, called the court members. Theoretically the commander is supposed to either know, or interview, the court members before they are selected. In practice, what often happens is the staff judge advocate selects the court members.
Before being allowed to sit on the jury, panel members get asked questions by your defense attorney and by the prosecutor. This questioning is called “voir dire,” and the purpose is to find out if these individuals can be fair and objective. It is important for your attorney to make sure the potential jurors understand that you are innocent until proven guilty.
The members of the jury must be your rank or above. If you are an enlisted service member, you can ask to have at least one-third of the jury be of your same rank.
Court-Martial Jury Deliberation
The Military Rules of Evidence govern what evidence can be submitted during the trial. Any evidence that the judge rules to be excluded by these rules cannot be considered by the jury.
The member of the jury with the highest rank is normally appointed as the foreman (called the president). But during jury deliberations, all members of the jury have the right to an equal voice regardless of rank.
A two-thirds vote is required to find you guilty. In a civilian court, the failure of a jury to agree unanimously usually creates a hung jury and can lead to a second trial, but the rules are different for courts-martial juries. If at least two-thirds of the jurors cannot agree to the guilty verdict, then you will be acquitted (found innocent). However, if a death sentence is involved, the jurors' decision must be unanimous.
Most courts-martial end with a conviction and proceed directly to the sentencing phase. Sentencing is called “extenuation and mitigation.” At this stage, you get the chance to present witnesses and evidence to show yourself in a positive light. If you haven’t had a trial but have instead pled guilty and proceeded to the sentencing phase, your defense attorney may have had a chance to strike a deal with the prosecutor. For example, the prosecutor could agree to a less severe sentence when you agree to plead guilty. But the jury won’t know about this sentencing deal, so they might give you an even lighter sentence than what you previously agreed to.
If you are going to testify at this point in the trial, make sure you have your defense counsel prepare you. It can be hard to get cross-examined by a prosecutor and still keep your cool and not say anything that could show you in a poor light and lead to a more severe sentence.