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The U.S. Oral Courts-Martial System

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General Principles of U.S. Military Justice• Military personnel are given responsibilities and

trust beyond the norm. Good order and discipline is vital to maintain efficiency.

• Criminal behavior undermines unit cohesion, lowers effectiveness, degrades unit morale

• As Citizens, servicemembers always retain their right to a fair oral trial

• Civilian oversight of military courts

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Legal Structure of the U.S. Court-Martial System - STATUTORY

• U.S. Constitution

• Congress has responsibility to regulate the Armed Forces

• Uniform Code of Military Justice (UCMJ)– Congressionally Enacted– Comprehensive Code– Disciplinary and Criminal

Behavior

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Legal Structure of the U.S. Courts-Martial System - REGULATORY

• President is Commander-in-Chief

• President makes rules and regulations for Courts-Martial (Executive Orders)

• Rules for Court-Martial (RCM)• Military Rules of Evidence (MRE)

– Closely match Federal rules of evidence

• Manual for Courts-Martial (MCM)

• President establishes the maximum punishment for each offense

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The Convening Authority• Commanders with authority to ‘convene’

a Court-Martial are referred to as a Convening Authority (CA)

• The CA decides what to do in each case– dismissing the allegations;– forwarding to superior commander;– imposing non-punitive measures;– imposing nonjudicial punishment; – convening a court-martial.

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Unlawful Command Influence PROHIBITED. . .

• Members of the Command may not:

– Attempt to control courts-martial

– Attempt to influence testimony

– Assign biased members

– Punish court members for their judicial actions

– Intimidate or interfere with the military judge or defense counsel

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PREVENTING UNLAWFUL COMMAND INFLUENCE

• Judge, Prosecutor, Defense are not in same chain of command

• Superior Commander may intervene• Training in Military Justice• Remedies

– Cases can be dismissed

– Commander can be punished

– Acts of undue influence are subject to disciplinary measures

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Jurisdiction• Personal: Worldwide application

• Subject matter: Disciplinary infractions, military-specific offenses, typical criminal offenses.

• Concurrent jurisdiction

with civilian courts– State

– Foreign

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Types of Court-Martial• Summary Court-Martial (Prompt Adjudication of Minor Offenses)

• Special Court-Martial (Full Oral Trial)

• Military judge• Trial counsel• Defense counsel• Minimum of three members • 1 year maximum confinement

• General Court-Martial (Full Oral Trial)

• Same participants• Minimum of five members• May impose maximum punishment authorized for an offense

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Court-Martial Due Process

• Accused is entitled to free legal representation by a military lawyer

(except Summary Court-Martial)

• Government must bring case to trial within 120 days of formal charges or pre-trial confinement

• Pre-trial confinement is permitted if justified by certain evidence

• Decision to impose such confinement is automatically reviewed

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The Path to a Court-Martial• Allegation and Investigation• Convening Authority Review• Official charging - ‘Preferral’• Forwarding of charges to court - ‘Referral’• Convening the Court

– Additional steps to send charges to a General Court-Martial

• Oral Trial • Sentencing• Appellate Process

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The Path to a Court-Martial• Allegation and Investigation

– Every allegation must be investigated at the appropriate level:

• Preliminary Inquiry – Done within the command

• Criminal Investigation – Done by professionals

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The Path to a Court-Martial

• Convening Authority Review

– Convening Authority seeks advice of his military lawyer or;

– Convening Authority decides to forward case to higher commander;

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The Path to a Court-Martial• Official charging - ‘Preferral’

– Convening authority officially requests legal services

– Servicemember with personal or investigative knowledge of case swears that charges are warranted

– Servicemember is notified– Charges are sent to unit for Convening

Authority Decision

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The Path to a Court-Martial• Forwarding of charges to court -

‘Referral’

– Convening authority reviews preferred charges and decides to send them to a Special Court- Martial….or,

– Convening authority sends case to an Article 32 investigation, after which they can ‘refer’ charges to a General Court-Martial

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The Path to a Court-Martial• Oral Trial

– The keystone of an accusatorial system– All evidence evaluated ‘live’ before a fact-

finder– Trial Advocacy skills crucial for proper

presentation of case – Procedures of trial have due process built-in

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The Path to a Court-Martial• Sentencing

– ALWAYS an adversarial proceeding – Judge or Jury consider aggravating,

mitigating, and extenuating evidence– Decide on punishment even in case of a

guilty plea and/or plea bargain

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The Path to a Court-Martial• Appellate Process

– Initial review by convening authority

– Each branch has a court of appeals - Automatic appeal in any case where punishment includes 90 days of confinement or Bad Conduct Discharge

– Appellate defense counsel assigned for each accused

– The Court of Appeals for the Armed Forces (CAAF) can review any decision of the lower courts

– Final review authority rests with the U.S. Supreme Court if they grant review

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U.S. Oral Court Martial System

• Accountable to Civilian Authority

• Same accusatorial model as Civilian courts

• Due Process is incoporated into procedure by law and legal precedent

• Rights of appeal included

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