Are there Grand Juries in the Military?August 10, 2020
Are there Grand Juries in the Military? The answer is no.
In the civilian legal system, a Grand Jury acts as a check on the prosecution's power. Essentially, a Grand Jury has to review a case before it can proceed to a trial. There are no Grand Juries in the military.
Instead of a Grand Jury, the military uses something called a "preliminary hearing." A "neutral" JAG is assigned as the preliminary hearing officer (PHO) and determines whether there is probable cause to believe the accused committed the offense/offenses charged. The PHO also makes a recommendation as how the charges should be disposed of (i.e. General Court-Martial, Special Court-Martial, Summary Court-Martial, dismissed). The prosecutor represents the Government, and an accused and his/her lawyer are present as well. Both sides can present evidence at such a hearing. For a variety of reasons, witnesses are usually not called and statements are used instead.
While preliminary hearings are supposed to be a check on the prosecution's power, they actually have no teeth. A PHO's findings and recommendations are nothing but suggestions. The Command can completely ignore them and proceed with a case against an accused in whatever way they want. For example: A PHO can determine that there is no probable cause to believe an accused committed the offenses charged. Despite this recommendation, the Command can still proceed and force the accused to face a General Court-Martial.
This may seem unfair; however, this is the system that Congress and the President have implemented. Preliminary hearings used to have more authority; however, they have fell victim to military justice reform driven by sexual assault prosecutions.
Furthermore, while the PHO is supposed to be neutral, he/she usually works for the same Staff Judge Advocate that the prosecutor does. Many PHOs are inexperienced and afraid to make findings and recommendations that hurt the prosecution's case.
If a Servicemember finds themselves asking "are there Grand Juries in the Military?" then it is time to consult with an experienced military lawyer to best protect their rights.
This article was written by Attorney Matthew Barry