5 minute read


Further Readings, Any Last Words? The Evolution Of The Court-martial

A tribunal that tries violations of military CRIMINAL LAW. It often refers to the entire military justice process, from actual court proceedings to punishment.

First established in eighteenth-century U.S. law, the court-martial is today the result of tremendous modernization that has made it similar to a trial in federal district court. Defendants are presumed innocent until proven guilty, accorded considerable legal protections, and guaranteed the right to appeal. The court-martial is governed by the UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C.A. §§ 801–940), a federal law that Congress originally passed in 1950, but that legislators, presidents, and the U.S. Supreme Court have since changed several times. Significant reforms of the court-martial now grant military defendants essentially the same DUE PROCESS rights that are afforded defendants in civilian courts.

The Uniform Code of Military Justice vests in the president of the United States the authority to draft and to amend the Manual for Courts-Martial, United States (10 U.S.C.A. §§ 801-946). This document includes a number of procedural rules in the military justice system, including the Rules for Courts-Martial and Military Rules of Evidence. These rules are practiced by judge advocates, who serve as the attorneys in the military justice system. While many of the rules are similar or analogous to procedural rules in the civil justice system, such as the Federal Rules of Criminal Procedure and the FEDERAL RULES OF EVIDENCE, the military rules provide specific rights and procedures that do not have civil counterparts. In 1998, President WILLIAM JEFFERSON CLINTON approved several amendments to the Manual, including those related to pre- and post-trial confinement, trials, sentencing, substantive criminal offenses and defenses, post-trial procedures, and the authority of the Judge Advocate General.

Three levels of courts exist in the military justice system: military trial courts, courts of military review, and the U.S. Court of Military Appeals. Courts-martial are handled by the lowest courts, which are presided over by military trial judges who are quite similar to U.S. district court judges. These judges are commissioned officers selected by judge advocates according to rules established by Congress, and their responsibility for individual cases begins and ends with the court-martial process. The military trial courts are organized by the type of courts-martial that they address—summary, special, and general, which reflect increasingly serious charges and punishments.

Just as trials in civilian criminal courts are the result of work by police officers and prosecutors, courts-martial are preceded by a formal investigation. During questioning, military suspects have the same FIFTH AMENDMENT right to remain silent, as do civilians, as well as some additional rights. Civilian police officers must read a suspect the Miranda rights at the time of arrest. Article 31 of the Uniform Code of Military Justice requires military investigators to go even further: As soon as suspicion focuses on a suspect during interrogation, they must advise him or her of the right to remain silent. This stringent requirement places a higher burden on military investigators to protect suspects' rights, and later it can become grounds for the dismissal of charges if it is not followed.

Military laws provide generous protections to defendants before a case goes to trial. These include complete pretrial discovery, allowing defendants free access to witnesses and evidence, as well as a requirement that prosecutors reveal the names of witnesses who will be called during all stages of the trial. In addition, the government must provide defendants with expert witnesses at its own expense; judges may delay or dismiss trials if prosecutors fail to do so. The military judge is empowered to hear pretrial motions on a broad range of issues, ranging from alleged violations of the defendant's constitutional rights to the admissibility of evidence. Before the case is heard, defendants have the choice of trial by judge or jury, and enlisted members can request that at least one-third of the court be enlistees. Defendants may also elect to be provided with military counsel or to hire a civilian attorney.

The court-martial closely resembles a trial in federal court. Military judges have the same authority as federal judges to rule on all matters of law and to give orders to the prosecution and the defense on such procedural matters as arguments, motions, and challenges. Two differences are particularly significant. First, whereas few civilian courts allow jurors to pose questions to witnesses, military courts have long permitted the practice. Jurors may submit written questions, which both the prosecution and the defense read in order to prepare any possible objections, which also must be in writing. The judge then decides which questions to allow. Second, military judges have a greater duty than do federal judges to review a defendant's entry of a guilty plea. This duty is designed to protect defendants from PLEADING guilty because of coercion, which could be more likely in the military because of its strict code of discipline and obedience to authority. MILITARY LAW requires judges to reject the plea at any stage of a proceeding if any hint of coercion is found.

The right to appeal convictions in military courts is different from that in civilian courts. Options for appeal are determined by the type of court-martial: Summary court-martial convictions, which are for lesser offenses, offer only the right to appeal to the commander who convened the court, and to make a further petition for review to the judge advocate general. Convictions in special and general courts-martial can be appealed to higher authorities, but the type of sentence handed down also governs a convicted party's rights. If the sentence is less than six months' confinement or a bad-conduct discharge, the case is reviewed by a legal officer in the convening authority's staff judge advocate's office, with no further appeals other than a right to petition the judge advocate general.

Greater convictions are automatically appealed to a court of military review, which considers matters of fact and law. Consisting largely of higher-ranking military judges, these courts exist for each branch of the military and have a total of 31 appellate military judges. The Uniform Code of Military Justice requires them to review serious sentences such as confinement of one year or more, dishonorable discharge, or dismissal of officers or cadets. Sentences to general officers and flag officers are also reviewed automatically. In all cases, defendants are granted free counsel for their appeals.

At the next level, the Court of Military Appeals—composed of five civilian judges who are appointed by the president of the United States—may decide to hear any petition from an unsuccessful appeal to a court of military review.

Finally, once military remedies have been exhausted, federal courts, including the U.S. Supreme Court, will review a court-martial conviction for claims of denial of constitutional rights.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Costal cartilage to Cross‐appeals