Legal Resources

Military Trial Procedures

The rules and procedures in courts-martial are very similar to those in civilian courts. The following discusses some of those similarities and points out some of the differences.

Pretrial Conferences (“Meeting in Chambers”). As in many civilian courts, a legally trained judge presides over most courts-martial. The “military judge” may hold informal conferences to coordinate aspects of the trial. These are similar to conferences a civilian judge might have “in chambers.” Under the military rules, “RCM 802 conferences” may be in person, or by phone, but may not be used to resolve contested issues. Contested procedural or legal issues must be resolved in court, on the record.

Pretrial Hearings. The military judge usually settles contested legal or procedural issues under Article 39(a), of the Uniform Code of Military Justice, which allows him to conduct hearings for that purpose. Called “Article 39(a) sessions,” the military judge may hear witnesses, take other evidence, and hear arguments, just as a civilian judge would during “motion hearings” in a civilian case. These sessions and most other proceedings of courts-martial are open to the public. As in civilian cases, Article 39(a) sessions take place outside the presence of the “court-martial members” who serve as the jury in military cases.

Arraignment. One of the first “Article 39(a) sessions” in a military case is typically “arraignment.” Just as in civilian cases, the accused service member is informed of the charges against him and offered an opportunity to make a plea (i.e., “guilty” or “not guilty”). If the service member intends to plead guilty, before a formal plea may be accepted, the military judge must ensure that the service member understands what he is doing and is acting voluntarily. This is called a “providency inquiry.” Civilian judges have the same requirement, although the military inquiry is typically more extensive and fact-specific regarding the offenses.

The Court-Member Panel. Similar to civilian juries, court-martial members are officers or enlisted persons from the same community or command (“jury of peers”) as the service member on trial. In civilian communities, serving on a jury is a duty of citizenship, and local court officials will “summon” citizens to serve as jurors. In the military, the convening authority assigns members to serve as jurors, and that becomes their primary military duty.

Voir Dire and Challenges. Just as with civilian jurors, court-martial members must be impartial and may make no decisions about a case until the military judge directs them to begin deliberations. Each side — prosecution and defense — gets a chance to ask the court-martial members questions to ensure that members are impartial. If a court-martial member’s impartiality is brought into question, or if it is otherwise inappropriate for that member to serve on the court-martial, the military judge will dismiss him or her, as would a civilian judge. As is done in civilian courts, the prosecution or defense may also remove a court-martial member “peremptorily,” meaning without a stated reason. In military practice, both the prosecution and defense are afforded one peremptory challenge. Also, like a civilian defendant, except in a capital case, a service member on trial may decide to have the judge decide his guilt or innocence, rather than court-martial members.

Trial on the Merits. Once the court-martial members are selected, the case is ready to proceed “on the merits,” that is, evidence will be presented about the guilt or innocence of the service member. As with any civilian case, the military prosecutor (called a “trial counsel”) presents evidence on the charges. The service member on trial (called “the accused”) may confront this evidence and cross-examine any witnesses. The service member may also present evidence and, through the military judge, compel witnesses to appear.

Rules of Evidence. What evidence is admissible in a court-martial is spelled out in the Military Rules of Evidence (M.R.E.). As required by the UCMJ, these rules are closely patterned after the Federal Rules of Evidence used in United States District Courts for civilian cases.

Defense Counsel. In all special and general court-martial cases, a military attorney, called a “detailed defense counsel,” represents the service member on trial. [Military attorneys are also known as “judge advocates.”] This attorney is detailed free of charge to the service member. The service member may also request a specific military attorney to join his defense team and, if available, that attorney will also be detailed free of charge to the defense team. Finally, at his own expense, the service member may hire a civilian defense attorney without losing his detailed defense counsel.

Closing Arguments and Burden of Proof. Mirroring the practice in civilian courts, once both prosecution and defense counsel have presented their evidence, they get to make “closing arguments.” Following closing arguments, the military judge will instruct the court-martial members about the law and direct them to begin deliberations. Because all service members are presumed to be innocent, the court-martial members must be satisfied that the evidence established the service member’s guilt “beyond a reasonable doubt.”

Deliberations and Voting. One departure from civilian cases arises in the way the court-martial members vote. Most civilian court systems require the jurors to be unanimous for either an acquittal or conviction, otherwise it’s a “hung jury.” Because of the need for expeditious resolution of cases, Congress directed that a vote of “three-fourths” of the panel members is needed before the accused may be found guilty of any offense charged. If the vote is less than three-fourths to convict, a verdict of “not guilty” is required. As such, the military does not experience “hung juries,” as do civilian jurisdictions. However, death penalty cases require a unanimous verdict. Voting is done by secret, written ballot. Although court-martial members are usually of different ranks, they are not permitted to use superiority of rank to influence or pressure another member.

Sentencing Proceeding. If the service member is convicted of any offense, the case proceeds immediately to the issue of sentencing. This is different from some civilian courts, where sentencing is delayed several weeks pending the completion of a pre-sentencing report. In military cases, there is no pre-sentencing report. Rather the prosecution and defense are expected to be prepared for this possibility and be ready to present evidence about the convicted service member and the offense.

Sentencing evidence includes the impact of the crime (both on a victim, and on a unit’s discipline and morale), the service member’s duty performance history, and extenuating or mitigating circumstances. Both the prosecution and defense may call witnesses. The accused may also testify or give an unsworn statement for consideration. Once the prosecution and defense finish presenting all their evidence and arguments for an appropriate sentence, the military judge or panel members will deliberate on the appropriate punishment. The types of sentences that can be imposed differ significantly from those imposed in civilian cases. In civilian courts, typical sentences may include death, confinement, or fines. A civilian judge may also impose probation, and he may require the completion of community service and mandatory treatment or education programs as a condition of probation. Although probation is not possible in military cases because a court-martial is a temporary entity created to resolve a particular case and adjourned when the sentence is imposed, sentences may subsequently be suspended by the court-martial convening authority.

Military sentences can include many different punishments such as death, confinement, separation from the service, reduction in pay grade, forfeiture of pay and allowances, fine, and reprimand. The maximum limits on punishments for each offense are set by Congress in the Uniform Code of Military Justice and defined in more detail by the President in the Manual for Courts-Martial. Unlike civilian courts, where an individual will receive a sentence on each count for which he is convicted (for example, if convicted of two counts of burglary, a civilian judge might sentence an individual to three years in prison for each count to run consecutively — or a total of six years in prison). In the military, a panel imposes one overall sentence, no matter how many “counts” (termed “specifications”) there are. The overall sentence limits are the sum of the limits on each “count” charged. For example, a service member charged with burglary before a general court-martial would face a maximum possible sentence of 5 years of confinement, forfeiture of all pay and allowances and dishonorable discharge. If charged and convicted of two counts of burglary, the service member could be sentenced to up to 10 years of confinement. [It is not legally permissible in a single case to adjudge forfeitures all pay and allowances twice, or to receive two dishonorable discharges. Only the potential confinement for each convicted offense is accumulated.]

When deliberating about a sentence, any panel member may propose a certain sentence. The panel members will then vote secretly on each proposal. Once the sentence is announced, the court-martial is adjourned and the post-trial review processes begin.

Additional Military Legal Resources

Our goal is to provide a comprehensive set of military legal resources; however, no online guide can replace the services of an experienced military lawyer. For specific questions regarding military law, we strongly urge you to contact military lawyer Stephen Karns or another experienced military lawyer.


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