The Court Martial Process

A military judge presides over special courts-martial; a defense attorney is assigned to the accused under certain circumstances; and a trial attorney is assigned to the prosecution. A panel of three service members decides the facts of the case unless the accused specifically requests a judge to do so. 

A court-martial is a criminal trial for members of the military who are accused of committing the crimes listed in the "Punitive Articles" section of the Uniform Code of Military Justice (UCMJ). Some of these crimes, such as larceny, arson, manslaughter, or conspiracy, are similar to civilian crimes. Others, such as desertion, mutiny, and insubordination, are specific to the military.

All service members who violate the UCMJ, regardless of their branch of service, are subject to a potential court-martial. Specifically, the UCMJ applies to:

  • Members of the regular (active) component
  • Members of the reserve component while on inactive duty (drill weekends) or annual training
  • Members of the National Guard, but only when in federal service
  • Cadets, aviation cadets, and midshipmen
  • Retired members of a regular component entitled to pay
  • Retired members of a reserve component receiving hospitalization from an armed force
  • Persons in the custody of the armed forces serving a sentence imposed by a court-martial
  • Members of the Fleet Reserve and Fleet Marine Corps Reserve
  • Members of the National Oceanic and Atmospheric Administration, Public Health Service and other organizations with serving with the armed forces

Courts-martial are run according to the guidelines set forth in the Manual for Courts-Martial (MCM) (PDF), which is issued by the President of the United States.

Types of Courts-Martial

There are three types of courts-martial:

1. Summary Courts-Martial

These are quick procedures used for enlisted service members accused of minor offenses. Summary courts-martial do not require a military judge or attorneys from the Judge Advocate General (JAG) office. Instead, one commissioned officer (normally an O-3 or above) reviews the facts, legal precedent, and sentencing guidelines before issuing a decision. A service member found guilty in a summary court-martial may be sentenced to up to 30 days confinement, 45 days of hard labor, restriction to a particular area for 60 days, one month of reduced pay, or reduction in rank. Besides the Air Force, the military does not offer free defense counsel for a summary court-martial.

2. Special Courts-Martial

The special court-martial is reserved for more severe offenses. It mirrors a civilian criminal trial, with specific times for discovery, pretrial motions, trial, and sentencing. The maximum penalties that can be assigned in a special court martial include one year of confinement, six months pay forfeiture, three months hard labor, or a bad-conduct discharge.

3. General Courts-Martial

The most severe offenses are prosecuted through general courts-martial. Like special courts-martial, they feature a military judge as well as legal representation for both parties. A panel of at least 5 members for non-capital offenses and at least 10 members for capital offenses decides the facts unless the accused requests a judge to do so (and the prosecution is not seeking the death penalty). The military judge presiding over the general court-martial may impose the maximum sentences allowed in the UCMJ or the MCM, including death, life imprisonment, or dishonorable discharge.

The Court-Martial Process

The court-martial process closely tracks civilian criminal procedure, although with a few important differences.

Initiating Charges

When a service member violates the UCMJ, the matter typically is brought before his or her commanding officer (CO). If the CO has probable cause to believe that the service member violated the UCMJ, she may order the service member to be apprehended and confined for up to 72 hours (pretrial confinement) while the CO decides how to proceed. During this time, the accused must be notified of the reason for his apprehension. The CO may choose not to proceed with a court-martial and to impose some form of "non-judicial" punishment instead. The service member may appeal the CO's decision if he believes that the punishment is unjust.

However, if the CO decides to proceed with a court-martial, she must do so within 120 days of the arrest. Alternatively, a court-martial may be convened by the President, the Secretary of Defense, or the Secretary of the military branch to which the accused belongs. Whoever convenes the court-martial is known as the "convening authority." The court-martial process begins when the accused is read the charges against him in the presence of a commanding officer and a neutral third officer. This is known as "preferring the charges." A military judge and legal representation for both sides is assigned. Both the accused and the prosecution then have the opportunity to investigate the facts behind the case, including reviewing documents and conducting depositions. Unlike a civilian trial, the investigation may continue during any part of the court-martial process.

Entering Pleas

After charges are preferred, the accused may then enter a plea. A guilty plea will only be accepted if the military judge is satisfied that the accused fully understood the charges against him and the consequences; and the prosecution is not seeking the death penalty. Once a guilty plea is accepted, the accused will be sentenced.

Proceeding to Trial

If the accused enters a not-guilty plea and the court-martial goes to trial, a panel will be chosen to decide the facts. Members of the panel typically are commissioned officers from a different unit and of a higher rank than the accused. However, the accused may request that enlisted service members join the panel as well. The panel then will take an oath before the beginning of trial stating that they will decide the facts impartially and without influence from their commanding officers. Panel members may not be disciplined for their findings. Unlike a civilian jury, a court-martial's panel is not randomly selected, but rather selected by the convening authority.

Trial in a court-martial resembles civilian court trials. Each side may present evidence and cross-examine witnesses. The military judge instructs the panel on the applicable law, and then the panel issues a decision. If the accused is found guilty, either the panel or the military judge will sentence the accused according to the sentencing guidelines in the UCMJ.

Rights of the Accused

The rights of the accused may not be as robust as the rights of a civilian criminal defendant, but there are significant rights during the military criminal process, including:

  • The right to be informed of the charges against the accused;
  • The right to remain silent, in other words, the accused cannot be forced to incriminate herself;
  • The right to defense counsel in a general court-martial or in a special court-martial when the accused may face a bad-conduct discharge; and
  • Protection against double jeopardy -- the accused cannot be tried for the same offense twice by court-martial. However, a service member may be court-martialed and tried in a civilian court for the same action.

Appealing a Court-Martial

The accused may appeal the outcome of a court-martial to the military court of appeals if the accused believes that the military judge made an error of laws. In cases where the accused is sentenced to the death penalty, the court-martial is automatically appealed.

See FindLaw's collection of resources and articles on Military Law to learn more.

Consulting with a Private Attorney About a Court Martial

If you’re facing a court-martial proceeding, you will have a military lawyer appointed to represent you throughout the process. However, you should also consider seeking the assistance of a civilian attorney specializing in military law who can represent you in conjunction with your military lawyer. A civilian attorney is not subject to any chain of command and may have more time to devote to your case. For more information on this, see FindLaw’s article, “Court-Martial: Should I Hire a Civilian Attorney.”

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