Court-Martial ProcessSeptember 19, 2019
The Court Martial process can be long and confusing. The below article is meant as a general overview. There are many complexities to the Court Martial process that require a more thorough review of a Servicemember’s specific case from an experienced military attorney. Contact Attorney Matthew Barry today to receive a free consultation.
Court Martial Process Step 1: Investigation
Any Court-Martial starts with an investigation. Most of the time, investigations that result in a Court-Martial come from the felony investigators (Criminal Investigative Division, Naval Criminal Investigative Service, etc.). However, this is not a requirement. Often times investigations conducted by the Military Police, Local Law Enforcement, or Federal Law Enforcement will result in a Court-Martial. Furthermore, while it is rare, sometimes investigations conducted by the chain of command will result in a Court-Martial. Regardless of who is conducting it, investigations are the Military’s way of collecting evidence against a Servicemember for whatever they are suspected of.
After an investigation concludes, the investigating agency presents it to the Military Prosecutors (JAGs). The primary investigator generally provides his/her opinion on what the prosecutor/command should do (prosecute or not); however, this decision is not up to the investigator. Their only responsibility is to collect evidence and present it to the prosecutor/command. The prosecutor then has to decide whether there is probable cause, or not, that the Servicemember has committed an offense.
After the prosecutor has made this decision, they present their decision and the complete investigation to the command. Generally, they present this information to the lowest level of command; however, for sexual assault, rape, and sexual misconduct cases (and some others), the first O6 in the chain of command must be presented this information for decision.
It is important to note that it is the command who makes the decision on what to do with an investigation. The investigating agency and prosecutor can only make recommendations. This is unique to the Military Justice system. Generally, however, a commander is going to agree with their prosecutor’s recommendation.
Once the investigation and the recommendations are presented to the command, there are several things that can happen. A commander can close out the investigation, take no action, and unflag the Servicemember. This is obviously the best result for a Servicemember. A command can also take several actions that are much lesser than a Court-Martial (verbal reprimand, letter of reprimand, non-judicial punishment, administrative separation, etc.). Finally, if a commander thinks that a Court-Martial is appropriate, they ask the prosecutor to draft a charge sheet for his/her action.
Court Martial Process Step 2: Preferral of Charges
Preferral of charges is just a technical term for when the military has decided to proceed with a Court-Martial. It is the formal action of a commander bringing charges against a Servicemember on behalf of the U.S. Government. A Servicemember will be called into a commander’s office and read a charge sheet. The commander will sign the charge sheet and provide it, along with all of the supporting evidence, to the Servicemember and his/her attorney.
The charge sheet and all of the evidence then gets passed up the chain of command. At every level of command, the commander has three options:
- A commander can agree with the prosecution, provide an endorsement, and pass it up to the higher-level command for that commander’s action;
- A commander can agree with the prosecution, but, take action at his/her level (a lower level Court-Martial, i.e. Summary or Special Court-Martial); or,
- A commander can disagree with the prosecution and terminate the proceedings. If a commander does this, a higher commander can always disagree and pull the entire proceeding up to their level. Basically, what this means is that if the military really wants to prosecute a Servicemember, and the lower commanders don’t want to, they will figure out a way to do so with higher commanders.
This process continues until the charges reach a commander who takes action at his/her level. Usually, this is the Commanding General of whatever installation a Servicemember is assigned to. The reason for this is because usually the Commanding General has the authority to convene General Courts-Martial (no limit on confinement and dishonorable discharges possible) and Special Courts-Martial (one-year cap on confinement and bad conduct discharges possible). Basically, if a commander and prosecutor have agreed that a Court-Martial is appropriate, the Commanding General is likely the first commander in the chain of command with the authority to convene a Court-Martial with the appropriate punishment available.
Court Martial Process Step 3: Preliminary Hearing (Article 32)
Before a General Court-Martial (no limit on confinement and dishonorable discharge available) can be convened, a preliminary hearing must be conducted. A preliminary hearing is essentially a check on the command’s power to bring charges against a Servicemember. Generally, an O4 JAG officer is the hearing officer. The Servicemember in question and his/her attorney will be present. The preliminary hearing officer takes evidence from the prosecutor and the defense and determines, basically, if the charges are supported by evidence. The rules of evidence, for the most part, do not apply.
While these hearings are supposed to be a check on the command’s power, they usually are just a minor speed bump for them. Here are the reasons why:
- The Defense’s ability to call witnesses and present evidence is severely limited;
- The preliminary hearing officer is usually a co-worker of the prosecutors and rated/senior rated by the General’s JAG;
- The standard of proof is incredibly low for the prosecutor; and,
- Even if the preliminary hearing officer decides that the charges are not warranted nor supported by the evidence, the recommendation is not binding on anyone. Basically, the command can just completely disregard the preliminary hearing officer’s entire report and recommendations.
This does not mean that preliminary hearings are a waste of time for a Servicemember and his/her attorney. Many things can be accomplished at these hearings in certain situations. An experienced military lawyer will recognize this. Sometimes with the right case, lawyers are successful in killing a case after a preliminary hearing. Other times it is advisable to waive this hearing and proceed to a Court-Martial.
Court Martial Process Step 4: Referral of Charges
Referral of charges is another technical term that describes the commander’s action when he sends the charges and the evidence to an actual court. For example, if the Commanding General has received a charge sheet, evidence, and recommendations from his lower command that a court-martial should be conducted, and the General agrees, he signs in a specific spot on the charge sheet. The charge sheet and evidence are then formally served on the Servicemember and his/her lawyer. After this is complete, the charge sheet and evidence are sent to a Military Judge (usually an O5 or O6).
After a required waiting period (3 or 5 days), the Servicemember and his lawyer are brought before the Military Judge at a courthouse for an arraignment. At the arraignment, the Servicemember has his rights explained by the Military Judge and has to make several important legal decisions. His/her lawyer should be prepared to make these decisions. The arraignment is generally a quick court-appearance; however, it is important. The formal trial date and motions date are usually scheduled at this time.
Court Martial Process Step 5: Discovery, Witness Production and Expert Witness Requests
The discovery process begins after the referral of charges. The prosecution has an obligation to provide the Servicemember and his/her lawyer many different things (documents, evidence, i.e.); however, there is information and evidence that will not be provided unless specifically requested by the Defense. Depending on the case, the Defense may request medical records, cell phone records, cell phone extraction data, convictions of witnesses, law enforcement investigations, command investigations, evaluation reports, and/or counseling statements, just to name a few. If the Government denies the Defense’s request to get the evidence, the court can be petitioned so a subpoena can be obtained. It is imperative that the Servicemember’s attorney review the evidence, talk to witnesses, and otherwise investigate the case so they know what evidence is out there and what has to be requested.
The Defense also does not have the ability to compel (subpoena) witnesses to attend trial; however, the prosecution does. The Defense has to request what witnesses they want at trial and the prosecution can agree to compel them or not. If they deny a witness request, the Defense can petition the court to compel their production. Again, it is important that the Servicemember’s lawyer has reviewed the evidence, talked to witnesses, and conducted an investigation so they know who to request (and sometimes who not to request) to be at trial.
Expert witnesses can greatly assist with many cases. The most common types of experts used in military cases are Forensic Psychologists, Forensic Psychiatrists, Toxicologists, and Doctors; however, many different types of experts can be helpful, depending on the type of case (i.e. Private Investigator, Digital Forensic Examiner, Forensic Accountant, Nurse, etc.). The Government will pay for Defense experts if the Defense can appropriately articulate the need for them. If the Government approves the request, the expert is appointed as part of the Defense team. If the Government denies the request, the Defense can petition the court to have said expert appointed to the Defense team.
After referral, and before the motions hearing, is generally the time when a Servicemember’s lawyer should be doing most of their work. All of the evidence should be reviewed and witnesses should be identified and spoken to. If this doesn’t happen until right before trial (as some lawyers do), then the Servicemember may go into trial without the witnesses, experts, and evidence they need to get a favorable result. Many lawyers fail to understand this very basic principle. Others, like many public defenders and lawyers provided at no cost, are simply too overworked to accomplish this.
Court Martial Process Step 6: Motions Hearing
The motions hearing should be the second time a Servicemember and his lawyer appear in court. This is when the Military Judge hears and decides the legal motions that both sides have filed for his/her decision. There are many different types of motions; however, the most common are: motions to admit previous sexual activities of a complaining witness, motions to compel the Government to produce certain evidence, motions to compel the Government to produce certain witnesses, motions to compel the Government to produce expert witnesses, motions to dismiss charges and/or certain specifications of charges and motions to suppress certain statements and/or evidence.
Motions practice is an aspect of a Court-Martial that many lawyers overlook. Generally speaking, a Servicemember is not going to win a trial by motions practice alone; however, they could lose (and therefore ultimately get convicted at trial) if their lawyer fails to make certain motions. If a lawyer has not done the proper evidence review, case analysis, talked to witnesses, and investigated the case, they will make mistakes at this phase of the Court-Martial. Furthermore, some lawyers do not have the legal acumen to even know what motions to file. The bottom line is that a Servicemember should want an experienced and hard-working lawyer so they know what motions to file and how to argue them in front of a Military Judge.
Court Martial Process Step 7: Trial
A Servicemember first has to select who is going to decide their case. They can choose between a jury (called a panel in the military system) or a military judge. There are advantages and disadvantages to both options this should be discussed thoroughly with their attorney.
If a panel is chosen, trial begins with the seating of a panel. Recently, the law changed to set the number of jurors on a panel to 8 members. Statistically, this make it easy for the Government to achieve a conviction (8 is considered a good number for the prosecution). The Defense and the Prosecution get to ask the panel members questions to ensure that they are unbiased and otherwise suitable to be on the panel. At the end of questioning, the Prosecution and Defense can challenge any panel member that is, or appears to be, biased. The judge makes the final ruling. The Prosecution and Defense can also each pick one panel member that they don’t want, for any reason (as long as it is not a reason that is discriminatory towards a protected class). Once this process is complete, a panel will be seated and the trial will proceed.
The trial then proceeds much like other systems. Each side can make an opening statement. Then, the prosecution presents their evidence and witnesses. The Defense has the opportunity to question (cross-examine) each of the prosecution witnesses. After the prosecution rests, the Defense has the same opportunity to present evidence. The prosecution can then offer any evidence in rebuttal to what the Defense offered, and so on until both sides are done. Both sides get to make a closing argument. Usually, the prosecution gets to make a final rebuttal argument after the Defense makes their closing argument, and then the case is in the hands of the panel or judge.
Once the panel or judge has a decision they announce it in open court. A panel does not need to come to a unanimous decision unlike Civilian legal practice. If the verdict is Not Guilty, then the trial is terminated and the Servicemember goes back to his/her unit. If the verdict is Guilty on any specification, then the trial goes into the Presentencing phase. At this point, the prosecution can present any evidence in aggravation for what the Servicemember was convicted of, and the Defense can present any evidence in extenuation or mitigation. Both sides make arguments on the appropriate sentence to the judge/panel and then they deliberate one final time. After a decision is reached, they announce it in open court and the trial is terminated.
Court Martial Process Step 8: Post-Trial
The Post-Trial process is complicated and confusing. Basically, the convening authority (the Commander who sent the case to trial) can approve, disapprove, or mitigate portions of the conviction and/or sentence. Congress has essentially stripped the convening authority’s ability to alter a sentence or conviction; however, some relief is often available for Servicemembers. The Servicemember is given the opportunity to make an argument and present evidence to the convening authority before he/she makes the conviction and sentence final. Once the convening authority does such, the case is sent to the appellate courts for review of legal error.
This article was written by Attorney Matthew Barry.