Courts-Martial

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court-martial

Anyone facing a court-martial will be assigned active-duty, uniformed defense counsel at no cost to them. They also have the right to hire civilian defense counsel at no cost to the government. In more serious cases, a civilian military lawyer can be a true game-changer. There is no substitute for experience.

There are three types of military courts, from least serious to most serious: a) summary court-martial; b) special court-martial; and c) general court-martial.

The burden of proof is ALWAYS beyond a reasonable doubt, and the burden of proving the accused’s guilt remains with the government. It is never the accused’s responsibility to prove innocence. The government must prove their case through legal and competent evidence, and the accused, through his military defense lawyer, has the right to confront and cross-examine witnesses against him, and to call witnesses on his own behalf.

A commander will create a charge sheet (known as “preferring charges” or “preferral”) which will trigger the obligation to provide the accused with detailed defense counsel. Sometimes, the case can be negotiated at this point to avoid a court-martial. If not, then that commander or a senior commander may send the charges to a court-martial (known as “referring charges” or “referral”). Usually charges are referred to a special court-martial directly, or to a general court-martial after an Article 32 preliminary hearing is conducted.


SUMMARY COURT-MARTIAL (SCM)

The SCM is very limited in scope. Instead of a judge and members, the SCM is composed of one commissioned officer, who is not required to be a lawyer, and usually is not. The accused is not entitled to counsel, though if a civilian counsel has been retained, he may represent the accused if it doesn’t result in delay.

The maximum punishment that can be adjudged in an SCM is 30 days confinement, forfeiture of 2/3 pay per month for one month, and reduction to pay grade E-1. However, if the accused is an E-5 or above, the maximum punishment is reduction to the next lower pay grade and forfeiture of 2/3 pay per month for one month.

A member may refuse an SCM in the same way he may refuse an NJP. In other words, an accused must agree to be tried at a summary court-martial.


SPECIAL COURT-MARTIAL (SPCM)

The SPCM is analogous to a civilian misdemeanor court. It is comprised of a military judge, trial counsel, defense counsel, and members. “Members” is a military-specific term for “jurors.” A conviction at an SPCM is a federal criminal conviction.

The SPCM maximum punishment is confinement for one year, forfeiture of 2/3 pay per month for one year, reduction to pay grade E-1, and a bad-conduct discharge.

An accused may plead guilty only if he is in fact guilty, and must answer detailed questions from the military judge about the circumstances of the offense. The military judge will only allow the guilty plea if he is personally convinced that the accused committed the offense.

An accused who pleads not guilty may choose to be tried by a military judge alone, by a panel composed of at least three officer members, or (if the accused is an enlisted person), a panel composed of members, at least one-third of whom are enlisted members senior to the accused.

If convicted, the servicemember normally has an automatic right of appeal to his service’s court of criminal appeals in Washington, DC. A discretionary appeal may be sought to the Court of Appeals for the Armed Forces, and later, to the Supreme Court of the United States.


GENERAL COURT-MARTIAL (GCM)

The GCM is analogous to a civilian felony court. It is comprised of a military judge, trial counsel, defense counsel, and members. A conviction at a GCM is a federal criminal conviction.

Unlike a SPCM, which can be convened directly by the convening authority, a GCM cannot be convened unless and until a preliminary hearing under Article 32 has been conducted. An Article 32 preliminary hearing occurs before a neutral officer, usually a lawyer, in which the government must show that there are reasonable grounds to believe that the accused committed the offenses alleged. The defense is allowed to cross-examine witnesses and be provided evidence. The investigating officer then makes a nonbinding recommendation to the convening authority about the disposition of the charges.

The maximum punishment at a GCM is death, confinement for life without the possibility of parole, total forfeiture of pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.

An accused may plead guilty only if he is in fact guilty, and must answer detailed questions from the military judge about the circumstances of the offense. The military judge will only allow the guilty plea if he is personally convinced that the accused committed the offense.

An accused who pleads not guilty may choose to be tried by a military judge alone, by a panel composed of at least six officer members, or (if the accused is an enlisted person), a panel composed of members, at least one-third of whom are enlisted members senior to the accused. If the case is a capital case in which the government is seeking the death penalty, the panel must be comprised of no less than 12 members.

If convicted, the servicemember normally has an automatic right of appeal to his service’s court of criminal appeals in Washington, DC. A discretionary appeal may be sought to the Court of Appeals for the Armed Forces, and later, to the Supreme Court of the United States.