The U.S. Oral Courts-Martial System
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General Principles of U.S. Military Justice
• Military personnel are given responsibilities and
trust beyond the norm. Good order and discipline
is vital to maintain efficiency.
• Criminal behavior undermines unit cohesion,
lowers effectiveness, degrades unit morale
• As Citizens, servicemembers always retain their
right to a fair oral trial
• Civilian oversight of military courts
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Legal Structure of the U.S. Court-Martial
System - STATUTORY
• U.S. Constitution
• Congress has responsibility to
regulate the Armed Forces
• Uniform Code of Military Justice
(UCMJ)
– Congressionally Enacted
– Comprehensive Code
– Disciplinary and Criminal
Behavior
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Legal Structure of the U.S. Courts-Martial
System - REGULATORY
• President is Commander-in-Chief
• President makes rules and regulations for
Courts-Martial (Executive Orders)
• Rules for Court-Martial (RCM)
• Military Rules of Evidence (MRE)
– Closely match Federal rules of evidence
• Manual for Courts-Martial (MCM)
• President establishes the maximum
punishment for each offense
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The Convening Authority
• Commanders with authority to ‘convene’
a Court-Martial are referred to as a
Convening Authority (CA)
• The CA decides what to do in each case
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dismissing the allegations;
forwarding to superior commander;
imposing non-punitive measures;
imposing nonjudicial punishment;
convening a court-martial.
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Unlawful Command Influence
PROHIBITED. . .
• Members of the Command may not:
– Attempt to control courts-martial
– Attempt to influence testimony
– Assign biased members
– Punish court members for their
judicial actions
– Intimidate or interfere with the
military judge or defense counsel
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PREVENTING UNLAWFUL COMMAND
INFLUENCE
• Judge, Prosecutor, Defense are not in same
chain of command
• Superior Commander may intervene
• Training in Military Justice
• Remedies
– Cases can be dismissed
– Commander can be punished
– Acts of undue influence are subject to disciplinary
measures
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Jurisdiction
• Personal: Worldwide application
• Subject matter: Disciplinary infractions,
military-specific offenses, typical criminal
offenses.
• Concurrent jurisdiction
with civilian courts
– State
– Foreign
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Types of Court-Martial
• Summary Court-Martial (Prompt Adjudication
of Minor Offenses)
• Special Court-Martial (Full Oral Trial)
• Military judge
• Trial counsel
• Defense counsel
• Minimum of three members
• 1 year maximum confinement
• General Court-Martial (Full Oral Trial)
• Same participants
• Minimum of five members
• May impose maximum punishment authorized
for an offense
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Court-Martial Due Process
• Accused is entitled to free legal
representation by a military lawyer
(except Summary Court-Martial)
• Government must bring case to trial within 120
days of formal charges or pre-trial confinement
• Pre-trial confinement is permitted if justified
by certain evidence
• Decision to impose such confinement is
automatically reviewed
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The Path to a Court-Martial
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Allegation and Investigation
Convening Authority Review
Official charging - ‘Preferral’
Forwarding of charges to court ‘Referral’
• Convening the Court
– Additional steps to send charges to a General
Court-Martial
• Oral Trial
• Sentencing
• Appellate Process
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The Path to a Court-Martial
• Allegation and Investigation
– Every allegation must be investigated at the
appropriate level:
• Preliminary Inquiry – Done within the command
• Criminal Investigation – Done by professionals
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The Path to a Court-Martial
• Convening Authority Review
– Convening Authority seeks advice of his
military lawyer or;
– Convening Authority decides to forward
case to higher commander;
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The Path to a Court-Martial
• Official charging - ‘Preferral’
– Convening authority officially requests legal
services
– Servicemember with personal or investigative
knowledge of case swears that charges are
warranted
– Servicemember is notified
– Charges are sent to unit for Convening
Authority Decision
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The Path to a Court-Martial
• Forwarding of charges to court ‘Referral’
– Convening authority reviews preferred
charges and decides to send them to a
Special Court- Martial….or,
– Convening authority sends case to an Article
32 investigation, after which they can ‘refer’
charges to a General Court-Martial
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The Path to a Court-Martial
• Oral Trial
– The keystone of an accusatorial system
– All evidence evaluated ‘live’ before a factfinder
– Trial Advocacy skills crucial for proper
presentation of case
– Procedures of trial have due process built-in
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The Path to a Court-Martial
• Sentencing
– ALWAYS an adversarial proceeding
– Judge or Jury consider aggravating,
mitigating, and extenuating evidence
– Decide on punishment even in case of a
guilty plea and/or plea bargain
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The Path to a Court-Martial
• Appellate Process
– Initial review by convening authority
– Each branch has a court of appeals - Automatic
appeal in any case where punishment includes 90
days of confinement or Bad Conduct Discharge
– Appellate defense counsel assigned for each accused
– The Court of Appeals for the Armed Forces (CAAF)
can review any decision of the lower courts
– Final review authority rests with the U.S. Supreme
Court if they grant review
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U.S. Oral Court Martial System
• Accountable to Civilian Authority
• Same accusatorial model as Civilian
courts
• Due Process is incoporated into
procedure by law and legal precedent
• Rights of appeal included
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