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5 Common Questions About Courts-Martial

By Brett Snider, Esq. | Last updated on

When military service members face courts-martial, they face many of the problems that criminal defendants face in civil courts.

However, the military criminal system can be very different from the civilian court system that most of us are more familiar with.

To illustrate this, here are five questions commonly asked about the court-martial process, and the answers every service member (and civilian) should know:

1. Is Refusing to Deploy a Crime?

Yes. The army can file criminal charges against a service member who refuses to deploy when called upon to serve his or her tour of duty.

Even mothers in the military who claim that their children will be left without care cannot refuse this call to action without facing criminal charges filed by military authorities.

2. What Is a Court-Martial?

A court-martial is the military analogue to the civilian criminal court system. Much like the civilian courts, courts-martial are presided over by a single judge or commanding officer, and cases involve violations of the Uniform Code of Military Justice (UCMJ).

There are three types of courts-martial:

  • Summary Courts-Martial. These deal with minor offenses, and do not require a judge.
  • Special Courts-Martial. These are for more serious offenses, and do require a judge.
  • General Courts-Martial. These are reserved for the most severe offenses, and the death penalty can potentially be imposed.

3. Do I Have a Right to a Jury Trial?

Civilians are entitled to a jury trial for "serious offenses," but military trial rights are slightly different.

In a summary court-martial, a service member does not have the right to a jury to decide his or her case. However, with both special and general courts-martial, panels of service members can be called upon to judge the facts; a judge-only trial can also be requested.

4. Can I Call Witnesses in My Defense?

Yes, service members are allowed to present evidence in their defense as well as cross-examine witnesses presented during a court-martial.

Like in civilian court, service members have the right to remain silent (i.e., "take the Fifth") and not testify against themselves. However, at a summary court-martial, there is no right to have an attorney present to assist you. In these situations, service members may consider hiring a civilian attorney.

5. Am I Innocent Until Proven Guilty?

Courts-martial and civilian courts both presume that the accused is innocent, and both require that charges must be proven beyond a reasonable doubt.

Servicemen and women with more questions about the court martial process may want to check out FindLaw's newly expanded section on Military Law and consider consulting an experienced military attorney near you.

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