From the outside, a court martial appears similar to a civilian trial – there is a judge, a prosecutor, and a defense attorney. 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. Military culture is also very different from the civilian justice system.
A special court martial has limited jurisdiction to impose punishment: the maximum sentence allowed at a special court martial includes one-year of confinement and a Bad Conduct Discharge (BCD). A general court martial, on the other hand, has jurisdiction to impose the maximum sentence allowed for a particular offense. For example, if convicted at a general court-martial of larceny of more than $500, then the maximum sentence is ten-years confinement and a Dishonorable Discharge. On the other hand, if the same larceny offense is tried at a special court-martial, the maximum sentence is one-year confinement and a BCD. Only a general court-martial has jurisdiction to try certain sexual assault offenses under Article 120, UCMJ.
The court-martial is presided over by a 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.
SHOULD YOU HIRE A CIVILIAN MILITARY LAWYER?
The most important decision an accused soldier, sailor, airmen, or Marine must make is whether to hire a civilian military attorney. 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 normally 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 special court martial, the panel consists of a minimum of 3 officers selected by an admiral or a general – called the “convening authority.” If the accused is an enlisted member, then he may choose to have a panel consisting of at least one-third enlisted members, but the enlisted members are still chosen by the convening authority. 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.
While a special court martial has limited jurisdiction to sentence a service member, the consequences of a conviction by special court-martial are still significant. The record of conviction as well as a a Bad Conduct Discharge will make finding employment difficult. Examples of the military crimes that are often tried by a special court-martial include:
- Article 85, UCMJ, Desertion
- Article 86, UCMJ, Absence without leave (AWOL)
- Article 91, UCMJ, Insubordinate conduct
- Article 90, UCMJ, Assaulting or disobeying superior commissioned officer
- Article 92, UCMJ, Failure to obey order or regulation
- Article 134, UCMJ, Conduct prejudicial to good order and discipline
A more complete description of the military crimes which may be tried by a special court martial is available here.