Military Court-Martial Trial Procedures and Rules

Military members who commit an offense or crime may be tried before a court-martial. While court-martials (or "courts martial") are similar in some ways to civilian trials, the procedural requirements can be different.

What Is a Military Court-Martial Trial?

A court-martial is a judicial body that determines whether a member of the armed services violated military law. The Uniform Code of Military Justice is the source for the special set of laws and procedures that apply to service members.

The process of being tried by a court-martial 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 usually your commander will be the one who prefers charges against you.

Your commander may also choose from three potential levels of court-martial:

• summary court-martial
• special court-martial, or
• general court-martial.

The type of court-martial will depend on the severity of the preferred charge. Summary courts-martial decide whether non-judicial punishment (Article 15) is appropriate. Special courts-martial oversee minor charges—similar to misdemeanors—while general courts-martial oversee serious charges equivalent to felonies.

Before a Court-Martial Trial

Military members have certain rights they should know about before a court-martial trial. The extent of these rights depends on whether the tribunal is summary, special, or general.

Level of Court-Martial

After charges are "preferred," the next step is either:

• determination of the level of court-martial to "refer" the case to
• 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, they'll have to conduct an investigation before "referring" the case for trial. An informal investigation is enough if your case is being referred to special court-martial. But a formal investigation is required prior to a general court-martial.

Right to Counsel

You won't have a right to counsel in a summary court-martial, although you can hire an attorney at your own expense. But if you'll be appearing before a special or general court-martial, then 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.

A trial defense service—that isn't under the control of the person who preferred your charges—will assign you defense counsel. If you know of a judge advocate that you would like to use, you can specifically request that lawyer. Your request should be granted as long as it's reasonable for the lawyer to be available for you.

You can hire a civilian attorney in addition to the judge advocate assigned to you, but you'll have to pay the attorney's fee (which can be quite costly). Even if you hire your own lawyer, your judge advocate will stay on your case unless you dismiss them, which is rarely a good idea—the military lawyer can work with your civilian attorney and keep your attorney's fees down.

Probable Cause Hearings for General Court-Martials

Under Article 32 of the Uniform Code of Military Justice, you have the right to have a probable cause hearing before a general court-martial trial can be conducted. You can waive the hearing but it's not a good idea—the hearing will give you the opportunity to better understand the evidence against you and develop your legal arguments.

Hearings are conducted by an Article 32 hearing officer. The officer must present evidence showing probable cause (meaning that it's "more likely than not" that you committed the offense). The officer must also submit any evidence that is favorable to you. You don't have to participate actively in this hearing but you can, either with military counsel or private counsel. During the hearing, your attorney has the right to:

• cross-examine the officer's witnesses
• challenge the officer's evidence
• call your own witnesses, and
• present your own evidence.

At this stage, your commander has enormous influence. They get to choose the hearing officer, select the court members, and decide whether the case should go to a military tribunal. Any evidence that can convince the commander not to refer the case to a general court-martial can be submitted—even if it's unrelated to the charged offense.

Pre-Trial Proceedings

If your case has been referred for a court-martial trial, your attorney and the trial counsel (similar to a prosecutor in civilian trials) will prepare evidence, obtain witnesses, and file pretrial motions if needed. The trial counsel is obligated to arrange for all witnesses—both for you and for the military tribunal—to be available at the trial. The government will also pay the expense of bringing witnesses to the trial, including costly expert witnesses.

During a Court-Martial Trial

Military trials are conducted either before a military judge alone or before court members (basically, a jury) depending on the type of court-martial.

• Summary court-martials have a single officer presiding over the proceedings.
• Special court-martials can have either a military judge alone, or at least three court members and a judge. Enlisted service members can request that at least one-third of the court members also be enlisted.
• General court-martials may consist of a single military judge, or a military judge and at least five court members. Enlisted service members can request that at least one-third of the court members also be enlisted. A capital case can't be tried by a judge alone.

Even though judges are technically required to be unbiased, they rarely acquit the accused in a court-martial proceeding, so you should elect to have a jury trial. You'd need to have some very extreme reason to waive the jury trial and go with the judge alone.

Selection of the Court-Martial Jury

If you elect a jury trial, your commander gets to choose the court members. Theoretically, the commander is supposed to either already know or conduct an interview with the court members before they're selected. But in practice, the judge advocate selects the court members.

Before they can sit on the jury, potential court members are asked questions by your attorney and by the trial counsel—a process called voir dire. The purpose of voir dire is to find out if the people that will be potentially deciding your case can be fair and objective. Your attorney needs to make sure they understand that you are innocent until proven guilty.

The court members must be your rank or above. If you're 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 Manual for Courts-Martial contains the Military Rules of Evidence, which controls the types of evidence that can be submitted during the trial. The jury can't consider any evidence that the judge determines is excluded by the rules.

The court member 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, if all jurors can't agree on a decision, the jury is said to be "hung" and another trial might be needed, but the rules are different for courts-martial juries.

If at least two-thirds of the court members can't agree on a guilty verdict, then you'll be acquitted (found innocent). But if a death sentence is a possible outcome, all jurors must agree on your guilt.

After a Court-Martial Trial

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 that puts you in a positive light. Make sure you have your judge advocate or attorney prepare you if you're going to testify at this point. It can be hard to keep your cool during questioning and not say anything that puts you in a poor light and leads to a more severe sentence.

If you didn't have a trial but instead pled guilty and proceeded directly to the sentencing phase, your attorney may have had a chance to strike a deal (such as a guilty plea in exchange for a less severe sentence) with the trial counsel.

Appealing Courts-Martial Decisions

If you were convicted by a court-martial, you're entitled to have the sentence reviewed by the convening authority. For more information, read our article on requesting clemency after a court-martial conviction.

If you disagree with the decision of the convening authority, you can appeal to the Court of Criminal Appeals for your military branch. Further appeals will go to the Court of Appeals for the Armed Services. Finally, you can ask the Supreme Court to review your case, but it's extremely rare that they do.

_{Updated June 9, 2023}