WHAT IS A COURT MARTIAL AND HOW DOES IT WORK?
WHAT IS A COURT MARTIAL?
This page is intended to inform you of the stages of a court martial. Click here for information on the consequences of a court martial.
A court martial is the term the military uses for criminal trials. The military has three levels of courts martial depending on the level of severity: Summary, Special and General, with General being the most serious level. The remainder of this article will focus on Special and General Courts Martial. For a discussion about Summary Court Martial, go here.
PRE-COURT MARTIAL PROCESS
A commander or commanding officer orders a criminal case to a court martial. This is usually after an investigation has been completed and a the commander has received advice from a military attorney. Before a commander can order a case to a General court martial, that commander must first send the case to a hearing where the accused has the right to attend, with counsel, and present evidence in his or her defense. This hearing, called an Article 32 hearing, can be waived by the accused.
After an alleged crime has been committed, an investigation usually begins. During this investigation, if the commander believes that the accused will commit further misconduct or not appear at trial, the commander can order that the accused be placed in restriction or even pretrial confinement. Any pretrial confinement will be served in the military’s Brig or confinement facility. If this happens, the accused has the right to a hearing before a neutral military officer to determine if the commander’s decision was reasonable. The accused has a right to have an attorney assist them at this hearing. If the accused does serve pretrial confinement and is later sentenced to any jail time, time served in pretrial confinement will be credited towards any sentence to jail.
WILL I BE ABLE TO MAKE BAIL
No, there is no bail in the military criminal process.
STAGES OF A COURT MARTIAL
These are the stages of a Special or General Court Martial. Each process is discussed in further detail below:
1. Assignment of Attorney
3. Discovery and investigation
5. Plea Negotiations
1. ASSIGNMENT OF ATTORNEY
After the investigation is concluded and the commander has ordered the case to a court martial, the local military legal office will assign an active duty military defense counsel to assist you for free. This free attorney is assigned to all active duty members ordered to court martial–rank or income does not matter.
Although most legal offices won’t provide you a free lawyer until after the court martial has been ordered, servicemembers who learn that they are under investigation should seek IMMEDIATE legal assistance before making any statements or decisions. Those under investigation can either go to the legal office and seek help or call a civilian military attorney. At King Military Law, we are available 24/7 to provide free initial assistance to those being investigated.
At arraignment, you will appear at a hearing before a military judge with your defense attorney where you will be formally notified of the charges against you and asked to enter a plea. In most cases, your defense attorney will advise you to plead “not guilty” and request a jury trial. You’ll have the chance to change your plea later, if you decide that is best. Until then, a “not guilty” plea preserves all of your rights and gives your legal team the chance to conduct their own investigation, review “discovery” and help you decide whether or not to go to trial.
3. DISCOVERY AND INVESTIGATION
“Discovery” is the process of getting evidence and information from the other side in a court case. Before trial, the prosecution is required to turn over all evidence it has against the accused or that it plans to use at trial. During this process, your defense team will receive the government’s investigation against you.
Independent of the discovery process, your legal team SHOULD explore whether you have any possible defenses. They will also explore other issues that could affect your case. A good defense investigation can often result in favorable evidence for use during negotiations with the commander or during trial and is a CRUCIAL aspect of your attorney’s job. The military defense offices employ some investigators and the military judge can order the government to assign an investigators to your case if your attorney can convince the judge that justice requires that. At King Military Law, we utilize seasoned private investigators who are recently retired law enforcement detectives and retired FBI agents. Any tests you need or experts to assist your defense will be paid for by the government.
DO WE HAVE TO GIVE DISCOVERY TO THE PROSECUTOR?
Anything you tell your attorney or other member of your defense team is privileged, and will never be disclosed to the prosecutor or anyone else, except with your permission. If your case goes to trial, however, your attorney will have to first show the prosecutor any other evidence that your attorney plans to use in your case.
Prior to trial, there may be one or several motions hearings. A motion is a formal request that a lawyer makes to the judge. Most motions are written, and include arguments why the judge should grant the request. Motions are made for many reasons, such as a request that the judge order the government o pay for certain witnesses, an order that the judge exclude or permit certain evidence, or even a motion to dismiss the charges prior to trial. After one party makes a motion, the other side has the chance to respond in writing to the motion. Once both sides have responded, the judge will hold the hearing, at which you and your attorney will both be present.
5. PLEA NEGOTIATIONS
Before your case goes to trial, your attorney may discuss a “deal,” to avoid trial. “Deals,” also called “plea agreements,” are between the accused and the commander (also called the “convening authority”), where you agree to do something (plead guilty, cooperate with the government, etc.) in exchange for the convening authority doing something (dismissing charges, limiting your sentence, etc.). Most court martial cases are resolved through deals. However, at King Military Law, we believe that an aggressively fighting the prosecution at trial is the default and have seen that strategy result more often in better outcome for our clients. We will advise you to “deal” only when we are certain that is in your absolute best interests. Your lawyer will help you make a decision, but you–and only you–decide whether to accept a deal.
If you do decide to go to trial, the U.S. Constitution and the UCMJ guarantee you the right to a trial by jury, which the military calls “members.” At trial, the prosecutor must prove beyond a reasonable doubt that you are guilty. You are not required to prove you are innocent. If the prosecutor does not prove the charges beyond a reasonable doubt, you must be found not guilty. However, a good trial attorney will have conducted an in-depth investigation and be prepared to challenge all aspects of the prosecutor’s case and even be prepared to offer evidence to show your innocence.
An accused may choose to be tried before a jury consisting of officers or (if the accused is enlisted) a jury of officers and enlisted. Three fourths of the jurors must agree on guilt. If not, the verdict is not guilty. Also, an accused can be elected to be tried by a judge alone. Whether to be tried by a jury with enlisted members or a military judge alone is an important strategical decision that an experienced trial attorney can help the accused make.
At trial, some decisions, like whether to testify, are yours to make after advice from your attorney. Other decisions, involving legal strategy and the way that your case should be presented, are for your attorney to make after discussing it with you. You may need to insist that your attorney keep you well-informed about all aspects of the trial. You should be a partner, not a spectator, at your own trial.
Once the trial starts, and if you selected a jury, the lawyers will select a jury. During this process, called “voir dire,” the lawyers and the judge ask the members questions to determine if the members are able to be objective or if there is any other reason the member should not serve.
After a jury is selected, each side will get to make a statement to the jury about what the lawyer thinks the case is about, what the evidence will be, and what they want the jury to decide.
After opening statements, the prosecution presents all of its evidence to the jury. This is done by calling witnesses and showing evidence to the jury about the charges. After the prosecutor questions a witness, your attorney will have the chance to ask that witness questions. This is called “cross-examination” and this task requires meticulous preparation and skill.
After the prosecution completes this presentation, your attorney will have the chance to call witnesses and present evidence. The defense does not have to present any evidence. If it does, the government will be able to cross examine these witnesses. During this phase, you will have the right to testify if you choose to do so. If so, the prosecution can cross examine you in front of the jury and negative evidence about your previous conduct or background may become admissible. For this reason, whether or not to testify is an extremely important decision that should be made only after consultation with your attorney.
If your attorney presents a case, the prosecution gets a chance to “go again,” but only to rebut any evidence offered by your attorney.
When both sides have completed their presentations, each side gets a chance to tell the jury what they think the evidence showed and try to persuade the jury how it should decide. This too is a critical phase of the trial where the accused needs to have an experienced lawyer who knows what works during closing arguments. The prosecutor “argues” first, then the defense, then the prosecutor gets a final chance.
If you selected a jury, the judge will tell the jury what the law is, and what questions they will have to answer before they can find you guilty. Lawyers for both sides will have a chance to help the judge choose what instructions to give.
After receiving the Judge’s instructions, the jury retires to the deliberation room to deliberate. The jurors have all of the evidence admitted at trial and will discuss the case for as long as they wish and then vote by secret ballot. With few exceptions, they may only vote once and at least three-fourths of the jurors must agree on guilt. If less than three fourths agree on guilt, then the verdict is not guilty.
Whether you plead guilty or are found guilty after a trial, your sentencing case will begin immediately. If you have chosen a trial with a jury, you may also choose that the jury decide upon your sentence. If you do not choose that the jury decide your sentence, you will be sentenced by the military judge. There are significant differences between sentencing by military judge and sentencing by the jury. This is another important decision you will need an experienced defense counsel to assist you in making.
THE SENTENCING HEARING
Despite your choice, a sentencing hearing will happen next at which the prosecution can offer evidence about your crime to support a harsher sentence. This evidence often includes “victim impact evidence” where any victim of your crime may explain what impact that crime has had on the victim. As during trial, once the prosecution is done, your lawyer will have the opportunity to present evidence to support a lighter sentence, including evidence about your background. The sentencing hearing is conducted much like the trial, with witnesses called to testify and lawyers making closing arguments about the sentence. If you choose to do so, you may testify at the sentencing hearing and can even do so in a way that the prosecution may not cross examine you.
Unless there is a mandatory minimum sentence (such as in rape cases), the judge or jury can award you a sentence of no punishment all the way to the maximum allowed by law. If you receive a sentence that includes jail time, you will likely be taken from the courthouse to the local brig to begin that term. You may serve your time at a local brig or you may be transferred to another confinement facility within the United States.
It is likely that you will not receive pay and allowances while confined but, especially if you have dependents, there are opportunities to ensure your pay and allowances go to your family for a period of your confinement.
Depending upon your sentence, your conviction may be appealed. The appellate process is extremely important and should not be ignored as it may result in your conviction being overturned and you being released from confinement. However, your active duty military attorney will not be able to act as your appellate attorney. This is another good reason to consider a civilian trial attorney with appellate experience. The appellate process is complex but you can learn much more here.
CLEMENCY AND PAROLE
If you receive a sentence to confinement, you may seek clemency or parole. Again, this is a complex process that you need an experienced attorney to help you fight through. Go here for more information on clemency and parole.
FINALLY, WHAT YOU NEED TO KNOW RIGHT AWAY:
We hope this information was useful in informing you about the court martial process. One final important note: If you think the military suspects you of committing a crime, consider refraining from discussing your case WITH ANYONE EXCEPT YOUR ATTORNEY–this includes your family, work mates, and friends since all of those individuals can be forced to testify against you. If your command or investigators ask you questions about the allegations, you have a right to decline to answer questions and to have an attorney assist you before you do so. Protect yourself and EXERCISE THAT RIGHT! At KML, we’re available 24/7 for a free consultation to provide you immediate help through this process. Please give us a call if you think we can help.
King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most