The military court-martial process is governed by the Uniform Code of Military Justice. The process begins with a charge being “preferred” (initiated) against you. Technically, anyone in the military with direct knowledge of another person’s wrongdoing can “prefer” a charge, but most often, it is your commander who will prefer charges against you.
Before the Court-Martial Trial
Before the trial begins, you have the right to hire counsel, have a probable cause hearing, and request witnesses.
Right to Counsel
You have the right to be assigned (in military jargon, “detailed”) military defense counsel (called a Judge Advocate) as soon as a charge has been preferred against you. Defense counsel is assigned to you by a trial defense service that is not under the control of the person who has preferred the charges.
If you know of a Judge Advocate that you would like to use, you can specifically request that lawyer. As long as it is reasonable for this lawyer to be available to you, your request should be granted.
You also have the right to hire a civilian attorney, but you will have to pay the attorney’s fee. Getting quality civilian representation can be quite costly. Even if you hire your own civilian lawyer, the military defense lawyer will still stay on your case unless you dismiss him or her. You should not, however, dismiss the military defense lawyer casually; in fact, you should rarely do so. The military lawyer can help your civilian lawyer and keep your attorney’s fees down.
Level of Court-Martial
After charges are “preferred” and you obtain a lawyer, the next step is either a:
- determination of the level of court-martial to “refer” the case to (special or general)
- reduction of the charge so it can be resolved through an Article 15 punishment, or
- dismissal of the charges.
If your commander wants the case to go to court-martial, she or he will have to conduct an investigation before “referring” the case for trial. An informal investigation will suffice if your case is being referred to special court-martial. But a formal investigation is required prior to a general court martial.
Article 32 Proceedings (Probable Cause Hearing)
Article 32 of the Uniform Code of Military Justice provides you with the right to have a probable cause proceeding before a general court-martial trial can be conducted. This is a hearing conducted by an Article 32 hearing officer. The prosecutor must present evidence showing probable cause that you committed the offense. The prosecutor is also required to submit any evidence that is favorable to you.
You don’t have to participate actively in this hearing but you have the right to, either with military counsel or private counsel. You have the right to have your attorney cross-examine the prosecutor’s witnesses, challenge evidence, call your witnesses, and present your own evidence.
Any evidence that may help persuade the commander not to refer the case to a general court-martial can be submitted. This evidence doesn’t have to be only that which is related to the charged offense.
You have the right to waive an Article 32 hearing but it isn’t a good idea to do so. It can be helpful to have the prosecutor’s witnesses testify so you can find out before the trial what you are up against.
At this stage, your commander has enormous influence. The commander gets to choose the Article 32 hearing officer, select the court members (meaning, the jury), and decide whether the case should go to trial. Your commander may also seek to influence the trial proceedings through the staff judge advocate. This sort of influence is still unfairly impacting court-martials trials, but two changes have lessened the power of commanders to do so. One is the fact that your defense counsel is not appointed by your commander but by an independent trial defense service, and the other is having a judge who is independent of your unit to preside over the proceedings.
Before the trial, just like in the civilian setting, both lawyers will prepare evidence and witnesses and file pretrial motions if needed. The prosecutor (also called trial counsel) is obligated to arrange for all witnesses for both the defense and the prosecution to be available at the trial. The government also has to pay the cost of bringing witnesses to the trial, including expert witnesses. This is important because expert witnesses can otherwise be extremely expensive.
The Court-Martial Trial
The trial will either be before a military judge alone or before a jury (called court members). Even though judges are technically required to be unbiased, they rarely acquit a defendant in a court-martial proceeding. This means that you want to elect to have a jury trial instead. There would have be some very extreme reason to waive the jury trial and go with the judge alone.