There are certain things we come to understand about the criminal justice system in the United States. We know that everyone is entitled to certain rights. These rights include a presumption of innocence, meaning that everyone is presumed to be innocent unless and until the government proves them guilty beyond a reasonable doubt. The trial is presided over by a judge, who, in the federal court system presides over a permanent court with a lifetime appointment to ensure fairness. Everyone has a right to a trial by jury, and that jury must unanimously agree the defendant is guilty before he can be adjudged guilty. The jury must be fair and neutral. These rights, and others, arise from the U.S. Constitution.
When one either enlists in the military or is commissioned as an officer, he or she agrees to a different system of justice. Article I, Section 8, Clause 14 gives Congress the power to “make rules for the government and regulation of the land and naval forces”, and pursuant to this power, Congress has enacted the Uniform Code of Military Justice (UCMJ) located in Title 10 of the U.S. Code. The UCMJ provides for a system of justice that is very different from the system of justice civilian defendants experience. The differences begin with the concept of the “court-martial” which is in and of itself unique.
A civilian who is charged with a crime will appear before a judge or magistrate in a permanent court, either a U.S. District Court in the federal system or a county court of some type in the state system. A military court-martial, however, is not a permanent court, but rather, an ad hoc tribunal established to hear one or more cases referred to it. The court-martial is established by a military commander or commanding officer by order for a limited period of time. Once the court-martial hears the cases referred to it, its mission has been completed, and the court-martial ceases to function.
As a practical matter, the purpose of courts-martial is to ensure good order and discipline. A court-martial can be convened anywhere. While most courts-martial occur in specially designed rooms resembling civilian courtrooms, courts-martial can be held in war zones in any available space. During the First Persian Gulf War, we routinely convened courts-martial and conducted trials onboard the aircraft carrier on which I was stationed. As a defense counsel, I once defended a sailor before a court-martial held on the USS Peleliu, an amphibious assault ship (the sailor in that case was found not guilty). Courts-martial are intended to administer justice expediently, and that means they can be held anywhere.
The next important difference is the way in which charges are brought against an individual, referred to as a “defendant” in civilian courts or an “accused” in military courts. For serious felonies in federal court, a defendant must be indicted by a grand jury. A grand jury is composed of between sixteen and twenty-three members who hear evidence to determine whether there is “probable cause” to indict. Twelve members of the grand jury must vote to indict the defendant, and the indictment issued by the grand jury serves as the charging documents in the case.
In the military, charges must first be “preferred”, or sworn to, by someone subject to the UCMJ before the appropriate commanding officer, or “convening authority”. In all cases but sexual assault cases, the convening authority may either: take no action or only administrative action such as non-judicial punishment under Article 15 of the UCMJ; refer the matter to a summary or special court-martial for adjudication; or, refer the case to an Article 32 Investigation for possible referral to a general court-martial.
 As of 2023, allegations of sexual assault are handled differently than all other cases. The decision making process is no longer entrusted to the military commander, but rather, is referred to a senior Judge Advocate (military lawyer) for administration. This change to the UCMJ was made by Congress to correct perceived inadequacies in how the military services address sexual assault allegations.
Here is where the significant differences between civil courts and courts-martial begin to become apparent. In a civilian court, a grand jury either indicts or does not indict—there are no other options. In the military, however, the military commander can impose non-judicial punishments, including a reduction in rank, forfeiture of pay, restriction to a limited area for a period of time, etc. This administrative action can lead to a discharge from the service under Other than Honorable Conditions (OTH), an action that can have lifelong consequences. The commander can also refer the matter to a Summary Court-martial, a type of court-martial consisting of a single military officer sitting as a judge with no jury (or members), The summary court-martial can impose a sentence of up to 30 days incarceration along with other sanctions.
A special court-martial is sometimes referred to as a “misdemeanor” court-martial. While the punishment available in a special court-martial, normally twelve months incarceration, is similar to the maximum punishment of misdemeanors in some jurisdictions, there are significant differences between a special court-martial and a misdemeanor prosecution in a civilian court. One of the most significant differences is that in a civilian court, the maximum punishment of the offense charged determines whether the case is a felony or a misdemeanor. In the military, military commanders can, and frequently do, refer charges with felony level punishments to special courts-martial where the maximum punishment is twelve months incarceration.
The Article 32 Investigation is frequently compared to the grand jury process, but here again, such comparisons are misleading. A grand jury is selected from a random cross section of the community. It meets in secret and hears evidence presented only by the prosecutor. There is no defense counsel to argue on the defendant’s behalf. As a practical matter, the prosecutor exercises tremendous control over the process. It is often said that an Assistant U.S. Attorney can indict a ham sandwich, although I do not personally know of that ever happening.
An Article 32 is a much more robust process. An officer, hopefully an experienced Judge Advocate, is detailed as a hearing officer to hear evidence, determine whether there is probable cause, and make recommendations concerning the disposition of the case. Technical rules of evidence do not exist, however, the Article 32 process allows defense counsel to obtain valuable evidence about the case before it is referred to a general court-martial. The defense counsel may even present evidence in an effort to have the Investigating Officer make a favorable recommendation. Several times in my career, I have been successful at having the Investigating Officer recommend that a case not be referred to a general court-martial.
Another significant difference between the civilian and military system is the right to counsel and when it attaches. In a civilian court, the right to counsel does not attach until after the indictment. Ordinarily, only indigent defendants are entitled to counsel free of charge. In the military, the right to counsel attaches when charges are preferred, and the military member is entitled to representation by a Judge Advocate acting as defense counsel free of charge regardless of indigency. The military member can also retain civilian defense counsel—at no cost to the government—and if he or she chooses to do so, the military defense counsel can remain on the case acting as co-counsel.
Military judges are senior Judge Advocates in the respective services who have been specially selected by the Judge Advocate General for assignment as a judge. They tend to be experienced and highly competent. They serve in the role of military judge for as long as their tour lasts. Civilian judges in federal courts are nominated by the President and confirmed by Congress. They have a lifetime appointment and also tend to be experienced and competent. In fact, a military judge may only be assigned to that position for three or four years. As a result, they will almost always lack the experience of a U. S. District Court Judge.
The differences between a civilian jury and the members of a court-martial are one of the greatest differences between the civilian and military justice systems. A civilian jury is composed of twelve citizens randomly selected from the judicial district. A special court-martial is composed of at least three members, and a general court-martial is composed of at least eight members. Court-martial members are commissioned officers (unless the accused is an enlisted member, in which case, he or she can request that enlisted members serve on the court-martial). They are not “randomly” selected, but rather, are selected because of their experience. The jury in a military court-martial need not be unanimous. A two-thirds majority is needed to convict; otherwise, the accused is acquitted.
 There is a voir dire process in military courts-martial, just as there is in civilian courts, and members who cannot be fair and impartial can be excluded from the court-martial.
The differences between civilian juries and members in military courts-martial are significant, and it would be a mistake to try a military court-martial in the same way a defense lawyer would defend a defendant in a civilian trial. Military members tend to be better educated than civilian juries and are therefore less susceptible to emotional appeals. On the other hand, in my experience, military members are better at holding the government to its burden of proof. I would rather represent an innocent person before a military court-martial.
Another significant difference between a military court-martial and a civilian trial is sentencing. Generally speaking, a civilian jury is only a finder of fact, and its duty is done when it makes a finding of guilty or not guilty. Sentences are imposed by judges who consider a number of factors, including sentencing guidelines. In military courts-martial, sentences are imposed by military members based upon evidence presented by the government and the defense. Good military character can be a significant factor leading to a minimal sentence.
 A recent change to the UCMJ allows an accused to opt for sentencing by a military judge after the accused has been found guilty by a court-martial composed of members.
In one special court-martial I defended, after a client charged with theft was convicted of the crime, the members of the court-martial imposed no punishment, which they had a right to do. In another case, I defended a Lieutenant Commander in the Navy Judge Advocate General’s Corp. In the trial phase of the court-martial, the accused was convicted of only two of the twelve charges he faced, a significant victory. At sentencing, the accused was sentenced to only six months incarceration, and the members declined to dismiss him from the Navy. Had this case been prosecuted in a federal court, I would have expected a sentence of between three and six years.
On the other hand, military courts-martial can impose harsh sentences when they believe it appropriate. Sentencing should never be taken for granted in either military or civilian prosecutions.
A Comment on Civilian Counsel in Military Courts-Martial.
Military courts-martial and civilian trials are different, but does that mean the civilian counsel should not represent an accused before a court-martial? The short answer is “no”, with a caveat. Civilian counsels are free from the consequences of a vigorous defense; active-duty JAG officers may have to consider how a vigorous defense might affect his or her career in the future. Many civilian counsels also have vastly more trial experience than most JAG officers, mainly because they have been in practice longer and seen more trials. This experience can be vitally important.
Now for the caveat. Military culture is different from civilian culture, and a civilian attorney participating in a court-martial needs to understand these differences. It is important to know the differences between a lieutenant commander and a lieutenant colonel or that a captain in the Navy is a senior officer whereas a captain in the Army, Air Force or Marine Court is a junior officer. Military etiquette is more formal than civilian etiquette, and failure to show appropriate respect to military officers can be not only distracting but also cause counsel to instantly lose credibility. The loss of credibility, in turn, can hurt an accused’s case.
We know these differences and are as comfortable in military courts as we are in civilian courts. I spent twenty-three years in the Navy and Navy Reserve, eventually retiring as a Commander (O-5). I have represented service members from all the Armed Forces and know not only military culture, but the unique aspects of each service.
Service in any of the Armed Forces is challenging not only for the service member but for his or her family as well. There are deployments, sometimes on short notice, and these deployments can be extended. I spent my daughter’s first birthday on an aircraft carrier in the Red Sea preparing for war against Iraq. There were many holidays when my family celebrated without me, but my experiences are not unique. My son-in-law, a Navy pilot, has spent holidays away from his family. Members of the military, often deploy to dangerous places—Iraq, Afghanistan, and a dozen other conflict zones around the country—and frequently, they do not come home.
We respect and honor this service and are here to help service members when they need us. Please do not hesitate to contact us.