The U.S. Oral Courts-Martial System

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

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

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

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.

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

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

Jurisdiction Personal: Worldwide application Subject matter: Disciplinary infractions, military-specific offenses, typical criminal offenses. Concurrent jurisdiction with civilian courts State Foreign

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

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

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

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

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;

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

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

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

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

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

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