News 12 Augusta
News 12 Augusta
Court martial trials are procedurally similar to civilian criminal trials. An accused and his attorney must be familiar with the differences between military and civilian procedure. There are numerous pitfalls in the military system that could trap an inexperienced practitioner. Military trials involve a prosecutor (trial counsel), defense attorney,1 military judge,2 bailiff, court reporter,3 and if elected by the defendant, a panel of military members (a jury).4
A military panel is comprised of officers and enlisted personnel from the same command or from the same community as the accused. All members of the panel must outrank the accused. The military panel is selected by the convening authority based on various factors such as experience, rank, and age.5 The accused is entitled to an impartial court martial panel. While the prosecution and defense may voir dire the panel, questioning is often limited by the military judge. Both sides may challenge panel members for cause. However, each side may preemptively strike only one panel member.6 Court martial proceedings are open to the public and the media with a few exceptions. For example, the military judge may close the proceedings when classified information will be disclosed.7
The accused may choose to have the judge, rather than the panel, decide his or her guilt or innocence. However, if the accused elects to be tried by a panel, then the panel also will decide the sentence to be imposed. Likewise, if the accused elects to be tried by a judge alone, then the judge will determine the sentence.8 Also unique to military trials, when the prosecution and defense have finished questioning any witness, the panel may ask questions of the witness.9 It is common for military juries to ask numerous questions of witnesses in an attempt to get to the truth.
Under the UCMJ, a service member facing court martial has three options when electing counsel. First, he or she may select to be represented by a military defense counsel at no cost. Second, he or she may request another free military attorney by name. If that attorney is available, then he or she will be appointed to represent the accused. Third, the accused may hire a civilian defense counsel. If the accused elects to hire a civilian defense lawyer, then the accused is responsible for paying the civilian attorney’s fees and travel expenses. Nevertheless, the accused may request to keep his or her military attorney on the case to assist with the defense as well.10
In the military a hung jury does not exist. In order to find a defendant guilty, two-thirds of the panel must vote for a finding of guilty. The only exception is death penalty cases, which require an unanimous verdict. At a court martial, the burden of proof is the same as in any civilian criminal court. The prosecution must prove that the accused is guilty of all elements of the offense beyond a reasonable doubt.11 This is different from most civilian systems where the jury must find the accused unanimously guilty. If the civilian Urey does not agree on the verdict, then the result is a hung jury. Military juries are generally highly trained, disciplined, and educated. They are know to follow the judges instructions, the law, and make their decision on the facts presented at trial. Unfortunately, television and movies portray military juries as overzealous Government hacks that leave the defendant no chance of a fair trial. This portrayal is far from the truth in most situations.
If the accused is found guilty of an offense, the sentencing proceedings begin immediately. During the sentencing proceedings, the prosecution presents evidence in aggravation, victim impact, and effect on the unit’s discipline and morale. During sentencing proceedings in the military, the defense is permitted to present extenuating and mitigating evidence in an attempt to gain a lower sentence. Both sides are permitted to offer witness testimony and documentary evidence. It is common for military sentencing case to last several hours or longer. Both the prosecution and defense are permitted to give sentencing arguments to the court members or military judge.12 When determining what sentence to impose, two-thirds of a panel must agree on the sentence, unless the sentence is for more than 10 years or life, in which case three-fourths of the panel must agree. In death penalty cases, the panel must unanimously agree on death.13
An attorney seeking to practice in military courts should become familiar with the Uniform Code of Military Justice (UCMJ), the Military Rules of Evidence (MRE), and the local Rules of Procedure for the particular court. One a lawyer has mastered these basic rules and procedures, then they can effectively practice in any military court worldwide. Regardless of the court, whether in Iraq or Washington D.C., the same laws govern service members facing court martial.
1. Article 27, U.C.M.J.
2. Article 26, U.C.M.J.
3. Article 28, U.C.M.J.
4. Articles 26-28, U.C.M.J.
5. Article 25, U.C.M.J.
6. R.C.M 912.
7. R.C.M. 806, M.R.E. 505.
8. R.C.M. 903.
9. R.C.M. 913(c).
10. Article 38(b)(2), U.C.M.J., R.C.M 506(a).
11. R.C.M 921.
12. Article 18, U.C.M.J.
13. R.C.M. 1006; R.C.M. 1004(b)(7).
Michael Waddington is an expert court martial attorney and criminal military defense lawyer defending military personnel worldwide. He defends all levels of court martial cases.. He is a partner in the Augusta, Georgia, law firm of Gonzalez & Waddington. His worldwide practice focuses on military criminal court martial cases. http://www.ucmjdefense.com
He has successfully defended numerous high profile military court martial cases arising from the War on Terror and has been reported on and quoted by hundreds of major media sources worldwide. Mr. Waddington has provided consultation services to 60 Minutes, ABC Nightline, the BBC, German Public Television and other major news outlets. He has successfully defended court martial cases in the USA, Europe, the Middle East (Iraq, Kuwait), Central Asia (Afghanistan), and the Pacific (Korea, Japan).
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