How to Face a Court Martial

Three Parts:Preparing to Face a Court MartialPlanning Your Court Martial StrategyParticipating in a Court Martial

The rule of law follows you into the military. If you get in trouble, you may find yourself facing a court martial. Knowing the types of courts martial, your rights, and the general procedures can help you make smart choices in a stressful situation and achieve the best outcome for you and your career.

Part 1
Preparing to Face a Court Martial

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    Understand the difference between the military and civilian court system. A court martial is a type of trial for criminal misconduct defined in the Uniform Code of Military Justice (UCMJ).[1] The key difference is the inherent authority of the court, called jurisdiction. There are three areas where the military justice system is different than its civilian counterpart.
    • The UCMJ only applies to military personnel, members of designated quasi-military support services, military prisoners, prisoners of war, and very limited categories of civilians. This jurisdiction applies whether the accused is active duty, reserved, or retired. National Guard personnel are not covered by the UCMJ unless the units are performing active duty.[2]
    • Unlike civilian court, where you have to be inside the state or federal district, the UCMJ applies to criminal conduct that happens wherever in the world that you may be deployed.
    • The UCMJ is a compilation of criminal laws. Most of the laws you might see in the state or federal courts are included. However, there are additional crimes that are purely military in nature and can be punished through a court martial, such as mutiny, sedition, failure to obey an order, insubordination, and misconduct as a prisoner.[3]
    • Military law runs concurrent with civilian law. In a crime that is covered by equivalent state, federal, and military laws, the prosecutors can decide which court you will appear in. Additionally, the rules of double jeopardy are different. If you are convicted in a military court, you can still be tried again in state court for the same offense.[4]
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    Know the different types of court martial. While the common term "court martial" is used for all military prosecutions, there are three different types of legal actions. Like civilian courts, there are levels of seriousness, depending on the nature of the accusation.
    • A summary court martial is often used for minor charges against enlisted personnel. The fact-finder can be any commissioned officer qualified to determine the guilt or innocence and render an appropriate punishment. Except for the Air Force, the accused is not entitled to appointed representation, but may hire a civilian attorney.[5][6]
    • A special court martial is the second level of military courts, roughly equal to a civilian misdemeanor court. The court panel is generally six officers (although the accused can ask that two be enlisted personnel) acting as military judge, prosecutor, appointed or retained defense counsel, and a panel of three jurors. The accused can also waive the jurors and face trial in front of the judge alone.[7]
    • The most serious is the general court martial. In the civilian world, this would be the district court where felonies are heard. Along with the military judge, there is a prosecutor, appointed or retained defense counsel, and a panel of five jurors. On request, the court panel can be up to one-third enlisted personnel.[8]
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    Learn about the potential penalties in a court martial. Depending on the type of court martial, penalties range from confinement in a military facility for up to 30 days and loss of pay grade for a summary court martial to the death penalty in a general court martial.
    • Additionally, a general court martial may reimpose sentences of confinement of over one year, hard labor, loss of pay and pay grades.[9]

Part 2
Planning Your Court Martial Strategy

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    Receive notification of your charges. If you are active duty and subject to a court martial, you will be notified of the charges against you by your immediate commanding officer. Regardless of your duty status, you will also be served with a written copy detailing the charges against you.[10]
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    Decide on your legal representation. In a special or general court martial, you have the right to have military counsel appointed to defend you at no charge to you. For all levels of court martial, you always have the right to retain the lawyer of your choice.[11]
    • Unlike civilian courts, you do have the right to request to be represented by a specific lawyer. If she is available, she will be appointed to your case.
    • A military lawyer will be more experienced and comfortable with military protocol and procedure and can make the most of your case when it is being conducted in front of a board of officers. A member of JAG is almost more familiar with the effect of different penalties on your career, such as loss of pay grade or rank, and craft a plea agreement that gives you the best outcome.
    • A civilian lawyer is likely to have more trial experience in examining and cross-examining witnesses and arguing the weight of the evidence. If you have the resources to hire a civilian lawyer, look for one with experience in court martial procedures.
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    Consider a discharge in lieu of a court martial. If you are facing a special or general court martial, you should discuss the idea of a Chapter 10 discharge with your lawyer. This would be a type of plea bargain where you would leave active duty rather than face a more punitive sentence. If a Chapter 10 discharge is a possibility, you must discuss it with a lawyer, appointed or retained, to comprehend the effect on your return to civilian life.[12]
    • In a Chapter 10 discharge, you will be required to admit guilt to at least one of the charges against you. This admission bars further prosecution in federal court, but not in state court.
    • A discharge under this chapter will most likely be "other than honorable." This will bar you from future civilian educational benefits and veterans benefits.
    • Depending on where you are deployed, a less than honorable discharge can have financial and administrative consequences that can complicate your leaving the military.
    • You will be barred from reenlistment in the armed forces of the United States.
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    Cooperate with your legal counsel. If you decide to move forward with the court martial, you must be fully honest and cooperative with your attorney. Any discussions you have with your lawyer, even in a military setting, are covered by the attorney-client privilege and are totally confidential. You must disclose everything you know, including potential witnesses or location of evidence that may support your case. You should tell your lawyer everything, even if it implicates a senior or commanding officer. Without total honesty, your lawyer can't make the best case on your behalf.[13]
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    Discuss a potential pre-trial agreement. Originally, the UCMJ did not allow for plea agreements. However, Rule 705 of the Manual for Courts-Martial allows for a written pre-trial agreement that could result in dismissal of some or all charges in exchange for acceptance of an agreed punishment.[14] Like civilian courts, a pre-trial agreement avoids a trial and gives you a known punishment. Your attorney will negotiate with the prosecutor and other governmental representatives. No pre-trial agreement is valid unless you agree to it in writing.

Part 3
Participating in a Court Martial

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    Dress conservatively and appropriately. Military proceedings are more formal than civilian courts and you should take extra care with your appearance. Active duty personnel should wear Class A uniforms. In forward deployed areas, the judge has the discretion to allow local field uniforms. Retired or non-active duty litigants should dress neatly and professionally.[15]
    • A summary court martial may be held in your commander's office or conference room. In this situation, a neat and fresh duty uniform is appropriate attire unless you are instructed to dress otherwise.
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    Arrive before your scheduled court time. Military courts usually do not have the long dockets of civilian courts and your case will be called exactly on time. You should arrive early to confer with your attorney. Additionally, if your case is called and your are not present, the court may issue a warrant for your arrest.
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    Observe proper behavior and decorum. A military court is equivalent to a federal court and the atmosphere will be very formal. Do not bring food or drink to the court (water may be supplied). No tobacco products or gum is allowed. You will not be allowed to record or take photos during the trial.
    • Do not react during trial testimony. Do not gesture, roll your eyes, or make any noises. You may take notes and direct them to your attorney.
    • Turn off your cell phone or tablet. If possible, leave it in your vehicle or quarters.
    • Even if your military job classification allows or requires you to carry firearms, do not bring your weapon to court.
    • Stand when you address the court and refer to the judge as "Your Honor." Do not directly address anyone else in the court unless instructed by your lawyer.
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    Decide if you will testify. This is a strategy discussion between you and your attorney. In a special or general court martial, you have the right not to testify and cannot be compelled to testify, even by a superior officer.
    • If you do testify, you will be subject to cross examination by the prosecutor.
    • In a summary court martial, you will be expected to answer the presiding officer's questions and present your own side of the story.
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    Receive the court's decision. Like a civilian trial, either the judge or the trial panel will deliberate and come to a decision. The judge or trial panel will complete a findings and sentencing worksheet and the results will be announced in open court.[16]
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    Consider a post-trial appeal. You have the right to appeal any decision and sentence of a special or general court martial. Generally, your sentence is first reviewed by the command authority. The second level of appeal is one of the intermediate courts. There is one for each branch of the military.
    • In certain circumstances, including death penalty cases, the Judge Advocate General can refer a case to the civilian appellate court and ultimately to the Supreme Court.
    • Appealing a case decided under the UCMJ is very precise and complicated and should not be done without the assistance of experienced legal counsel.

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Categories: Careers in the Military