United States Courts-Martial System
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THE UNITED STATES ORAL COURTS-MARTIAL SYSTEM
I.
BACKGROUND AND GENERAL PRINCIPLES OF U.S. MILITARY JUSTICE
A.
The purpose of military law is to promote justice, to assist in maintaining good order
and discipline in the armed forces, to promote efficiency and effectiveness in the
military establishment, and thereby strengthen the national security of the United
States. Civilian courts and legal scholars have long recognized that the military
operates like a society within a society. The military’s special mission and thereby
the circumstances under which military members operate give rise to a system of
justice that is tailored to address unique characteristics including:
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Military personnel are given responsibilities and trust beyond the norm
The military operates both within and beyond national borders
Good order and discipline is vital to maintaining unit cohesion and
effectiveness
Criminal behavior undermines unit cohesion, lowers effectiveness, and
degrades unit morale, particularly if the command’s response to it is not
appropriate
Individual servicemembers always retain their right to a fair oral trial
conducted in the adversarial model
Civilian control of the military is further reflected in civilian oversight of
military courts
B.
The U.S. Constitution and Congress are the source of Military Codes.
C.
The Uniform Code of Military Justice (UCMJ). Congress exercised its power in
1950 to provide one statute to govern all the U.S. Armed Forces. It has been
amended numerous times, but has always retained the accusatorial (oral) trial system
as a constant.
1.
Offenses Covered: The UCMJ is a comprehensive code proscribing
criminal and disciplinary offenses.
2.
Legal Basis: The UCMJ is statutory. It is supplemented by the Manual for
Courts-Martial (MCM), which is regulatory. The Rules for Courts-Martial
(RCM) and the Military Rules of Evidence (MRE), both of which are
enumerated in the MCM, work together with the UCMJ to form the
backbone of the adversarial oral trial system in the U.S. military. The
MCM, RCMs, and MREs are presidentially enacted regulations, under his
authority as commander in chief.
3.
Jurisdiction: Military law regulates the conduct of U.S. Armed Forces at all
times and in all places, outside as well as inside the United States. It is
effective in wartime and peacetime.
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II.
ROLE OF THE CONVENING AUTHORITY [SLIDE 5]
A.
The process of creating a military court-martial is known as "convening." A
commanding officer authorized to convene a court-martial is the "convening
authority." The Uniform Code of Military Justice (UCMJ) designates which
commanding officers may convene a court-martial.
B.
The authority to convene a court-martial is independent of rank and is retained as
long as the convening authority remains a commander in one of the designated
positions.
C.
A commanding officer may dispose of disciplinary matters by:
D.
1.
dismissing the allegations;
2.
forwarding them to a superior commander;
3.
imposing non-punitive measures;
4.
imposing nonjudicial punishment; and
5.
convening a court-martial.
Unlawful Command Influence is Prohibited
1. Even before the convening authority decides to send a case to a court-martial, he
/ she must be careful not to express personal opinions about the guilt of the
accused to subordinates. This would seem to be at odds with the fact that the
convening authority is also the unit commander, and therefore has great interest
in maintaining good order and discipline. As a commander one certainly does
not want to appear ‘soft’ on Military Justice. However, it is important that the
command has a culture of fairness, with every servicemember knowing that any
allegation will be processed under the law and every accused will be tried fairly
in accordance with constitutional due process requirements. If the convening
authority communicates their opinion about a servicemember’s guilt or
expresses a certain desired outcome in the case, the credibility of the system is
undermined, and the accused in question will not get a fair trial.
2. To avoid such interference by the commander or other members of the
command, it is unlawful for anyone to influence the decision of a judge or panel
of members.
III.
COURTS-MARTIAL
A.
Jurisdiction
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B.
1.
Personal: The legal authority to bring a person before a properly convened
court-martial. The military has worldwide personal jurisdiction over any
active duty or retired servicemember.
2.
Subject matter: The offenses enumerated in the UCMJ are not solely
disciplinary (such as disobeying an order) or ‘military’ type of criminal
offenses (such as desertion)…they encompass the great majority of crimes
covered in any civilian criminal code, to include murder, rape, theft, drug
use, etc. The UCMJ even allows offenses that are not specifically
enumerated under its articles to be charged if they are found in federal or
state criminal codes. No substantive connection to the military is required as
to the location, victim, or type of crime other than the active duty status of
the accused.
3.
Concurrent jurisdiction: Shared jurisdiction with the civilian authorities
over an offense committed by a servicemember. When this occurs,
representatives of civilian authorities and military personnel often meet to
decide who will go forward with the case. Civilian jurisdictions often hand
cases over to the military because they know the case will be disposed of
fairly and they know the military has an interest in processing its own
individuals. Very rarely do both jurisdictions take action.
The Three Types of Courts-Martial
1.
2.
3.
Summary court-martial:
a.
Consists of one officer and may only try enlisted persons
b.
May impose up to 30-days confinement for E-4 and below.
c.
Typically no attorneys are involved in the proceeding
Special court-martial:
a.
Full Oral Trial
b.
Consists of a military judge, a trial counsel, a defense counsel, and a
minimum of three members
c.
May adjudge a maximum punishment of 1 year confinement and a
bad conduct discharge
General court-martial:
a.
Full Oral Trial – Highest level of Severity
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b.
Consists of a military judge, a trial counsel, a defense counsel, and a
minimum of five members
c.
IV.
May impose the maximum punishment authorized for an offense.
When and accused is charged with multiple offenses, maximum
punishments are simply added.
HOW A CASE IS BROUGHT TO AN ORAL TRIAL (SPECIAL OR GENERAL
COURT-MARTIAL)
A synopsis of how a case is processed in the U.S. Military court system is as follows:
A.
Pre-Trial Investigation. The Rules for Court-Martial require that any reported
offense is appropriately investigated by the commander of the unit in question.
1.
Preliminary Inquiries and Formal Administrative Investigations. At the
beginning stages many allegations of wrongdoing involve a matter that does
not appear to involve serious criminal misconduct but nevertheless requires
an inquiry. Examples of these types of allegations include low level
misconduct, administrative mismanagement, loss of funds, loss of property,
etc. In such cases a preliminary inquiry may be performed. This
investigation is normally assigned to an officer in the command. There is no
specific rank required, and the officer is not required to be a lawyer or an
investigator. However, if the inquiry involves a potentially serious matter or
a senior officer it is common practice to assign a senior officer. Each of the
different armed services require more formal investigations depending on
the issue involved and/or the monetary amounts associated with the
allegation. These preliminary inquiries or formal investigations may or may
not lead to a finding of criminal liability and/or formal criminal
investigations.
2.
Criminal Investigations. If the issue involved is clearly a criminal matter
such as theft, drugs, fraud, espionage, etc. the allegation is brought to the
attention of the service’s investigatory branch, which performs a formal
criminal investigation into the matter.
B.
Convening Authority review. Every type of investigation results in a report that is
delivered to the convening authority involved. As discussed in section II, C above,
the U.S. Military justice system gives broad authority for commanders to dispose of
offenses that are identified through such investigations. The Convening Authority
utilizes the counsel of his military legal advisor to make a final decision. Whenever
possible, legal advisors are provided to commanders at the battalion level and
higher.
C.
If the Convening Authority decides to refer the case to a Special Court Martial, the
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following steps are taken:
D.
1.
Preferral. The installation prosecutor’s office is usually aware of criminal
misconduct resulting from an investigation at the same time (or even before)
a Convening Authority is notified. Prosecutors work along with criminal
investigators to help shape the process of identifying and developing
evidence. Once the prosecutor’s office is notified that the Convening
Authority wishes to take the case to a Court-Martial, they produce formal
charges against the accused. This process is called ‘preferral’, and involves
an individual taking an oath (based on personal knowledge or a review of
evidence) that they believe the accused is responsible for the crimes charged.
That person is called the ‘Accuser’.
2.
Referral. Once the charges are preferred (sworn to), they are taken to the
Convening Authority for his/her action. This is the stage when the
Convening Authority breathes life into the court-martial involving this
accused. They do so by ‘referring’ the charges to a court martial they
previously ‘convened’ in writing. The authority to convene that court is the
reason for the Convening Authority’s name.
3.
Calling the Court to Order. Once the charges are referred to a court-martial,
the power over the substance of the case is handed over to a Military Judge.
The convening authority and members of the command are prohibited from
interfering with the administration of the case from that point on. From the
moment of referral onwards, it is the Judge who has the power to grant
extensions of time, grant relief requested by either side, and rule over all
matters related to the administration of the case. At the first hearing related
to the case, called an arraignment, the judge calls the court to order and soon
thereafter sets the schedule for the administration of the case, to include
litigation of preliminary motions, due dates for exchange of information, and
the trial itself.
4.
The Oral Trial - Trying the case on its merits. Every accused has the right to
select to be tried by a military judge sitting alone, or by a jury of military
members. If the accused selects to be tried by members, a questioning
process called Voire Dire is used to remove any member who cannot
impartially consider the evidence. The case then proceeds through the oral
process that we are examining during this training. The basic order of
events is: Opening Statements (from both sides); Presentation of Evidence
by the Prosecution; Presentation of Evidence by the Defense; Presentation of
Rebuttal Evidence by the Prosecution (if any); Closing Arguments; Jury
Instructions; Jury Deliberation; and Verdict.
5.
Sentencing. If the accused was found guilty of one or more offenses, the
trial immediately proceeds to the sentencing phase.
If very serious misconduct is involved (such as rape, robbery, or murder) meriting
punishment in excess of one year’s confinement, the convening authority will likely
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decide to send the charges to a General Court-Martial (GCM). Before this can take
place, a special investigation must be conducted. This pre-trial investigation is
called an “Article 32 Investigation” in reference to the Uniform Code of Military
Justice (UCMJ) article mandating the requirement. It is somewhat analogous to a
grand jury proceeding in U.S. civilian criminal justice, however the military accused
has many more protections than his or her civilian counterpart being investigated.
This investigation may be waived by the accused.
1.
E.
An Article 32 Investigating Officer will be appointed to conduct a hearing
with the accused and defense counsel present during which he or she will
inquire into:
a.
The truth of the matter set forth in the charges,
b.
The form of the charges for legal and factual correctness
2.
The accused has the right to be advised of the all the charges pending and to
be represented by military counsel provided by the government at no cost to
the accused. The accused may also be represented by civilian counsel
employed at no expense to the government. The accused and defense
counsel may examine all the evidence offered by the government at the
hearing, and cross-examine any government witnesses. The accused retains
the right to remain silent, however defense may, but is not required to, offer
evidence on behalf of the accused, including the calling of its own witnesses.
This evidence may go to the innocence of the accused or be in extenuation
and mitigation.
3.
The Article 32 proceedings are conducted under relaxed rules of evidence
and evidence that would not be admissible at a court-martial may be
considered by the Investigating Officer.
4.
Following the Article 32 hearings, the Investigating Officer prepares a
written report regarding the truth of the allegations and includes a
recommended disposition for the case. This report is directed to the officer
convening the investigation (typically the GCM convening authority). If
evidence of uncharged misconduct is discovered during the Article 32
Investigation, the Investigating Officer may comment on this evidence and
make recommendations concerning possible additional charges.
The Appellate Process
The government may appeal rulings made by a military judge, but not an acquittal.
From the defense perspective, every court-martial conviction is guaranteed at least
some form of appellate review.
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1.
The Convening Authority. Must review each conviction and approve each
punishment. The accused may petition the convening authority for
clemency before such action is taken. The convening authority may grant
clemency or other relief favorable to the accused when approving the
findings of guilty and the adjudged punishment. The convening authority
may not increase punishment.
2.
Officer Exercising General Court-Martial Authority (OEGCMA). The
accused may elect to waive his statutory guaranteed appeal and simply have
the case reviewed by the OEGCMA and the OEGCMA's staff Judge
Advocate. The OEGCMA authority also reviews all courts-martial that do
not qualify for automatic review.
3.
The Court of Criminal Appeals. (Military Judges) All cases, unless
otherwise elected by the accused, in which a punitive discharge or
confinement of at least one year was awarded as punishment, will be
reviewed by one of the service Courts of Military Review.
4.
The Court of Appeals for the Armed Forces. (Civilian Judges) Reviews
lower appellate court decisions when:
5.
V.
a.
The Court of Appeals for the Armed Forces grants the accused’s
petition for review; or
b.
The Judge Advocate General certifies the case to The Court of
Appeals for the Armed Forces.
The U.S. Supreme Court. Decisions of the Court of Appeals for the Armed
Forces may be reviewed by the U.S. Supreme Court, if the court grant’s the
petition for review.
CONCLUSION
A.
The military is accountable to the people of the nation through their elected
representatives.
B.
A military system founded on the Rule of Law and not the individual discretion of
military or civilian leaders is ultimately controlled by the civilian government.
C.
A court-martial in the U.S. system is an oral trial, following the same accusatorial,
adversarial model used in civilian courts.
D.
Due process rights of service members are guaranteed by a legal regime based on
the U.S. Constitution and molded over time by common law jurisprudence. This
legal backbone has been translated into a clearly defined military justice code that
sets out procedures and regulations for all adverse legal proceedings.
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E.
The procedures involved in an oral trial are part every accused’s due process
rights. The oral system allows the accused, through counsel, to speak directly the
fact finder, confront (cross examine) their accuser(s) on the stand under oath,
present evidence, and argue the facts in their favor.
F.
An appeals process is a vital part of the courts-martial system.
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