Military Juries

July 27, 2020

Military juries are very unique and are not similar to civilian juries.

Military juries are completely made up of military personnel; civilians are not allowed on one. Recently, the size of juries was fixed with updates to the UCMJ. Previously, the size could vary. The size of the jury depends on the level of Court-Martial. For Special Courts-Martial, there will always be four jury members. For General Courts-Martial, there will always be eight members.

At larger military installations, military juries are selected by the Commander and serve for a period of time (usually around 6-9 months). This means that the same jurors will likely serve on multiple Courts-Martial. This is something that lawyers should consider when presenting their case. For example, if the case before the jury is similar to a previous one that it heard, what strategies worked/did not work?

At smaller military installations, military juries are appointed for each specific case, instead of a standing jury mentioned above. Again, this is something that lawyers should consider when presenting their case. If the jurors are all new to Courts-Martial, they will not be used to the process and may need things explained to them that a more experienced jury would already know.

Military juries are required to be composed of "...those persons who in the opinion of the convening authority are best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament." Each juror must be senior to the accused. Furthermore, each member cannot be a member of the same unit as the accused (defined very narrowly). Additionally, if the accused is enlisted, he/she has the right to have a jury composed of at least one-third Enlisted members. Finally, warrant officers and enlisted members cannot be jurors for a commissioned officer on trial and enlisted members cannot be jurors for a warrant officer on trial.

What this usually means is that the Commander chooses jurors that are very senior to the Servicemember on trial. There is no "trial by a jury of your peers" in the military; those facing a Court-Martial will likely be judged by older, more senior, and accomplished Officers, Warrant Officers and NCOs. This is something that is very important to remember for any lawyer practicing in front of military juries; arguments need to be tailored to an older, senior, and accomplished group of military members.

Basically, a jury meeting the requirements above is appointed by the Commander. These jurors show up to the Court-Martial on the first day of trial. While the size of the jury is set, as mentioned above, more than the required size will show up. Each lawyer, and the judge, get to question the jurors. The purpose of the questions is to discover any bias that the jurors may have that could affect the case. After questioning, the lawyers from each side can challenge a juror for cause (i.e. bias). The judge decides if the juror in question is biased or not. There is no limit to the number of challenges for cause that each side has.

After all challenges for cause have been ruled on by the Judge, each remaining juror is assigned a random number. Most installations have been using a random number generator in Microsoft Excel; however, this is not required. For example, numbers could be pulled from a hat. Each remaining juror is given a number starting at 1 and counting upwards until all jurors have a number. After each juror has a number, the prosecution and the defense can each pick one juror that they wish to strike for whatever reason they want (peremptory challenge). The only limitations on the use of this peremptory challenge is that it cannot be based on race, ethnicity, or sex.

After peremptory challenges occur, the remaining jurors with the lowest four numbers (for a Special Court-Martial) or eight numbers (for a General Court-Martial) will be the jury. The only caveat to this is that if the accused has selected an enlisted jury, the required number of enlisted members will be chosen first (those with the lower numbers) and then the jury will be chosen normally after that.

This is a very confusing process. Those facing a Court-Martial should want to be represented by an experienced military lawyer so that this process is understood and the right decisions are made. Errors in decision making during this process can be critical.

After the jury is seated using the process above, the Court-Martial will begin. Much like with civilian juries, the members will observe the testimony and evidence presented by each side. Jurors are allowed to take notes. Interestingly, military juries are allowed to ask questions of any witness. The questions that the members of the jury ask, if any, give each lawyer insight into the thought processes of the jury.

After both sides are done presenting evidence, the jury retires to deliberate. Prior to retiring to deliberate, the members are not allowed to discuss the case among themselves. The jury then deliberates until they are ready to vote. They vote by written, secret, ballot. Unlike in civilian trials, the decision does NOT have to be unanimous to convict a Servicemember. If at least three-fourths of the members vote guilty, then the accused is convicted (three members at a Special Court-Martial and six members at a General Court-Martial).

Courts have previously ruled that since there is no Constitutional right for a Servicemember to have a jury, then juries do not have to be unanimous to convict; this antiquated reasoning is currently being challenged. Hopefully, the appellate courts will rule that military juries have to be unanimous, like all other juries; however, until then, Servicemembers can be found guilty with at least three-fourths of the members voting guilty.

As one can tell, military juries are very unique. Any Servicemember facing a Court-Martial is best served by being represented by an experienced military lawyer.

This article was written by Attorney Matthew Barry

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.