A general court martial is the highest trial level military court under the UCMJ. From the outside, a court martial appears similar to a civilian trial – there is a judge, a prosecutor, and a defense attorney. The accused has a right to counsel. However, the procedures and many of the rules governing the pretrial, trial, and post-trial phases of a court-martial are unique to the military justice system.
COURT MARTIAL PERSONNEL
The trial phase is presided over by the military judge – an active duty JAG lawyer holding the rank of Commander or Captain in the Navy and Coast Guard and Lieutenant Colonel or Colonel in the Army, Air Force and Marines. In military courts, the prosecutor is known as the “trial counsel.” The trial counsel is an active duty JAG attorney. Most trial counsel hold the rank of Lieutenant or Lieutenant Commander in the Navy and Captain or Major in the Army, Air Force and Marines. The military judge almost always outranks both the trial counsel and the active duty military defense counsel. The defense counsel at a court martial is either a JAG attorney detailed to the accused or a private lawyer hired by the accused. The accused has the right to counsel of his or her choice.
SHOULD YOU HIRE A CIVILIAN MILITARY LAWYER? YOUR RIGHT TO COUNSEL
The most important decision an accused soldier, sailor, airmen, or Marine must make is whether to accept their detailed military criminal defense attorney or to hire a civilian military lawyer. The accused service member has the right to be represented by an active duty JAG attorney. The JAG attorney serves in a capacity similar to a public defender; however, most active duty defense counsel are less experienced. When an accused hires a civilian military lawyer, the JAG attorney will act as assistant defense counsel.
THE MILITARY “JURY”
Under the UCMJ, the jury is known as the “panel members.” An accused has the right to choose trial by military judge alone or trial before panel members. At a general court martial, the panel consists of a minimum of five officers. If the accused is an enlisted member, then he may choose to have a panel consisting of at least one-third enlisted members. Instead of being selected at random as in civilian trial courts, the panel members are chosen by an admiral or general officer – under the UCMJ, this high ranking officer serves as the “convening authority.” The convening authority convenes the court-martial, selects the panel members, and approves (or disapproves) the findings and sentence.
On the first day of trial, an accused service member’s defense counsel has a limited right to question the panel members and challenge them for apparent or actual bias – this requires an understanding of both the law and military culture.
MILITARY LAW IS UNIQUE
The UCMJ created a separate justice system with unique rules governing the investigation, charging, and trial of military crimes. The UCMJ also created a separate criminal appellate system resulting in unique military law. Each military service has its own Court of Criminal Appeals. The Army, for example, has the Army Court of Criminal Appeals (ACCA) run by Army Lawyers. The Navy and Marine Corps have the Navy-Marine Corps Court of Criminal Appeals (NMCCA) run by Marine and Navy Lawyers. The Air Force has the Air Force Court of Criminal Appeals (AFCCA) run by Air Force JAG. The highest military appellate court is the Court of Appeals for the Armed Forces (CAAF). Having a military lawyer with experience in military appellate law can give you an added advantage at trial.
CONSEQUENCES OF CONVICTION AT COURT MARTIAL
Each military crime carries with it a maximum potential sentence. Some sex offenses also carry mandatory minimum sentences. A court-martial sentence may include confinement, a punitive discharge, forfeiture of pay and allowances, loss of rank, and a fine. At a general court-martial, there are three types of military discharges which may be part of a sentence. For enlisted members the two types of punitive discharge are dishonorable discharge and bad conduct discharge (BCD). Officers may receive a dismissal from the service which is equivalent to a dishonorable discharge.
Some examples of the military crimes that may be tried by a general court-martial include:
- Article 120 (a), UCMJ, Rape
- Article 120 (b), UCMJ, Sexual Assault
- Article 120 (c), UCMJ, Aggravated Sexual Contact
- Article 120 (d), UCMJ, Abusive Sexual Contact
- Article 120b, UCMJ, Rape Of A Child, Sexual Assault of a Child, and Sexual Abuse Of A Child
- Article 120c, UCMJ, Indecent Viewing, Visual Recording or Broadcasting, and Indecent Exposure
- Article 78, UCMJ, Accessory after the fact
- Article 81, UCMJ, Conspiracy
- Article 92, UCMJ, Failure to obey order or regulation
- Article 118, UCMJ, Murder
- Article 119, UCMJ, Manslaughter
- Article 121, UCMJ, Larceny and wrongful appropriation
- Article 128, UCMJ, Aggravated Assault
- Article 133, UCMJ, Conduct unbecoming an officer
- Article 134, UCMJ, Child pornography
- Article 134, UCMJ, Negligent homicide
- Article 134, UCMJ, Indecent language
- Article 134, UCMJ, Communicating a threat
A more complete description of the military crimes which may be tried by a general court martial is available here.
Defending Your Freedom
If you are a soldier, sailor, airman, or Marine facing a military court-martial or
if you are under investigation put Peter Kageleiry to work in your military defense.
Your military career, your service record and your future depend on it.