Courts-martial in the United States
Encyclopedia
Courts-martial in the United States are criminal
trial
s conducted by the U.S. military
. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice
(or UCMJ), which is the U.S. military's criminal code. However, they can also be convened for other purposes, including military tribunal
s and the enforcement of martial law
in an occupied territory
. Courts-martial are governed by the rules of procedure
and evidence
laid out in the Manual for Courts-Martial
, which contains the Rules for Courts-Martial, Military Rules of Evidence, and other guidance.
Courts-martial are adversarial proceedings
, as are all United States criminal courts
. That is, lawyer
s representing the government
and the accused
present the facts, legal aspects, and arguments most favorable to each side; a military judge determines questions of law, and the members of the panel (or military judge in a judge-alone case) determine questions of fact
.
predecessor, predates the Articles of Confederation
and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.
Tribunals for the trial of military offenders have coexisted with the early history of armies. The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces. Both the ancient Greeks and the Romans had military justice codes, although no written versions of them survive. Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.
The greatest influence on the modern court-martial comes from the Court of Chivalry
in England and the military code of Sweden's King Gustavus Adolphus. These courts both struck a balance between the demands of good order and discipline and the concepts of due process
. This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War
. The early British Articles of War reflected a concern for due process and panel member composition.
When war broke out
between the American Colonists and the British in 1775, the British were operating under the 1765 edition of the Articles of War. This version would serve as the template for military justice in the Continental Army
. When the United States declared independence and fought the Revolutionary War, "it had a ready-made military justice system." Despite the Colonists' dissatisfaction with the British, they still recognized the intrinsic value of the British military justice system in providing good order and discipline to its own armed forces.
While the 1765 British Articles of War were the template for the American military justice system, the Founding Fathers decided to break away from the British system in significant ways. First, the American Articles of War were created by a legislative enactment and not by an executive order. In the American system, the legislature undertook the government of the armed forces from the beginning - military justice was not going to be left to the executive. Second, Congress demonstrated its flexibility and willingness to change the Articles as necessary. The top military lawyer, Colonel William Tudor, informed Congress that the Articles were in need of revision. Congress would go on to revise the Articles several times to reflect the realities of a small military force. Nonetheless, the commander retained his role in the administration of justice.
The Founding Fathers
perceived the weaknesses and merits of the British Articles of War. They updated, revised, and provided flexibility to a rigid legal system, with concerns for due process and the importance of providing good order and discipline to its own armed forces. The Founding Fathers maintained the role of the commander in military justice. Once independence was achieved, the Founding Fathers could create a "more perfect Union" and assign the military its proper place within it.
The UCMJ was not an ideal system of justice, but given its purpose of sustaining good order and discipline within the military without unduly impairing operations, it could not be. Many individuals, groups, and organizations protested, but Congress retained the commander as the central figure of the military justice system. However, Congress significantly modified the commander's powers and added statutory checks and balances to limit outright despotism.
was required by Congress to study the issue of command selection of panel members. Congress did not take action when the Joint Services Committee (JSC) concluded that the "current system is most likely to obtain the best members within the operational constraints of the military justice system."
In 2001, the Commission on the 50th Anniversary of the Uniform Code of Military Justice disagreed with the 1999 JSC Report, noting "there is no aspect of military criminal procedure that diverges further from civilian practice, or creates a greater impression of improper influence than the antiquated process of panel selection."
The Framers of the Constitution had a great respect for the value of separation of powers. One of the primary goals of the Constitutional Convention, in remedying the defects of the Articles of Confederation
, was to create a government in which separate branches of power served as a check and balance against the other. Principles of separation of powers also applied to the military. The Framers vested power in the executive
and legislative branches, but left the judiciary
with only a collateral role in governing the armed forces.
By distributing power over the armed forces between the legislative and executive branches, the Framers "avoided much of the political-military power struggle which typified so much of the early history of the British court-martial system." Moreover, the Framers made it clear that while the command of the military lie with the executive, the military would be governed and regulated according to the law handed down by the legislative branch. Therefore, the government of the armed forces would always reflect the will of the people as expressed through their representatives in Congress.
After ratification of the Constitution in 1789, the First Congress undertook legislative action to provide for the government and regulation of the armed forces. On September 29, 1789, the Congress expressly adopted the Articles of War that were currently in place for the Army. xxvii It can thus be said that Congress continued the court-martial as previously established, and "the court-martial is perceived to be in fact older than the Constitution, and therefore older than any court of the United States instituted or authorized by that instrument."
The Framers consciously placed the court-martial and military law
in the legislative branch of the government. The First Congress and the Framers were also cognizant of the age and history of the court-martial with commander involvement, as well as the customs and traditions that pertained to it.
. Special courts-martial are considered "federal misdemeanor
courts" because they cannot impose confinement longer than one year. Summary courts-martial have no civilian equivalent.
at a summary court-martial varies with the accused's paygrade. If the accused is in the pay grade of E-4 or below, he or she can be sentenced to 30 days of confinement, reduction to pay grade E-1, or restriction for 60 days. Punishments for servicemembers in paygrades E-5 and higher are similar, except that they can only be reduced one paygrade and cannot be confined.
Military members who refuse UCMJ Article 15 nonjudicial punishment
can be referred for special court-martial. Usually this decision is made after the commanding officer consults with the command's JAG officer. The accused must consent to trial by summary court-martial before the court can commence.
(MCM), and may include death
(for certain offenses), confinement, a dishonorable or bad conduct discharge for enlisted personnel, a dismissal for officers, or a number of other forms of punishment. Before a case goes to a general court-martial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted, unless waived by the accused. An accused before any court-martial is entitled to free legal representation by military defense counsel (ADC-area defense counsel), and can also retain civilian counsel at his or her expense.
Although the Founding Fathers of the United States
guaranteed American citizens the right of a jury
trial both in the text of the Constitution
and in the Bill of Rights
, they determined that Congress
would establish the rules for disciplining the armed forces. From the beginning, Congress has retained the long-standing practice whereby, contrary to the principle of random jury selection
, the convening authority personally selects the members of a court-martial panel. Whether this practice is conducive to fair process has been the subject of critical investigation.
A court-martial has always been an ad hoc
tribunal
created and appointed by the order of a commanding officer
, as the convening authority, the tribunal is established the express purpose of considering a set of charges that the commander has referred to the court. The convening Authority considers the statutory prescription offered by the United States Congress, those "best qualified," in selecting the "panel" or jury for the court-martial. In turn, the members of the court-martial, who are generally under the command of the convening authority, take an oath
to "faithfully and impartially try, according to the evidence, their conscience, and the laws applicable to trial by court-martial, the case of the accused." By their oath, the panel members expressly agree to leave behind any influence from the commander who appointed them. The current practice in the United States Armed Forces is to appoint a number of officers to a standing panel of members. In cases where the accused is an enlisted member, the accused may request that enlisted service members be appointed to the panel.
The appointed or retained defense attorney may challenge both the military judge and members of the panel for cause. However, the military judge determines the relevance and validity of any challenge. The prosecution and defense initially possess one peremptory challenge to members of the court-martial. The accused may also challenge a member of the panel for cause "at any other time during trial when it becomes apparent that a ground for challenge exists." The UCMJ prohibits a convening authority from unlawfully influencing the court. A defense attorney may bring a motion to challenge the validity of the court-martial where it appears that a convening authority has unlawfully influenced court-martial members.
These Courts of Criminal Appeals can correct any legal error they may find, and they can reduce an excessive sentence. The accused will be assigned an appellate defense counsel to represent him or her at no cost before the Court. Civilian counsel may be retained at the accused's own expense.
issued signed 46 opinions in 2009.)
under the Constitutional authority granted in Article II
, Section 2.
) court. Article III
courts do not handle all of the judicial business in the United States. For over two hundred years, Congress has used its enumerated powers
under the Constitution in conjunction with the Necessary and Proper Clause to create specialized tribunals, including courts-martial, which are free from the protections of Article III. There are no constitutional infirmities in the creation of these courts. In fact, these courts help Congress carry out its enumerated powers efficiently - the court-martial is an example where the protections, procedures, and inherent inefficiencies of Article III courts would interfere with the military's ability to use the system effectively to help maintain good order and discipline. In fact, Article I, Section 8 of the Constitution says Congress shall have the power "To make Rules for the Government and Regulation of the land and naval forces."
Even where life and liberty are at stake, legislative courts are not required to grant due process rights that are intrinsic to the Article III courts. The Supreme Court has, instead, employed an analysis that examines whether the statutory due process system of a given legislative court grants what it calls "fundamental rights." The Supreme Court
simply applies a different constitutional analysis to legislative courts than to Article III courts.
Of all the legislative courts created by Congress, courts-martial have received the most deference from Article III courts. Under a standard of review known as the "separate community" or "military deference" doctrine, the courts have proclaimed the armed forces to be a distinct subculture with unique needs, "a specialized society separate from civilian society." While some scholars have argued against the idea of a separate legal system for the military, the Article III courts continue the doctrine of deference. Where there is a conflict between the constitutional rights of the individual service member and an asserted military purpose, the courts have deferred to Congress' ability, and duty, to balance the appropriate factors and reach a necessary compromise.
Today's court-martial system, including command selection of jurors, would seem to pass muster under the Supreme Court's constitutional analysis for legislative courts. The accused enjoys due process rights similar to the "fundamental rights" the Court recognized in other legislative courts. A defendant has many rights, including:
When placed in its context as a legislative court, the statutory grant of due process in a court-martial compares favorably with what an accused criminal can demand as a matter of right in other legislative courts. The balance that Congress has struck between an individual's rights and the purposes of the military will not lightly be disturbed by an Article III court.
Following both World War I
and World War II
, there were outcries for Congress to reform military justice. When the troops returned from WWI, the public was outraged with stories of miscarriages of justice
. This led to the first public movement to civilianize military law. In 1920, Congress made revisions to the Articles of War. This led to the imposition of a set of personal criteria for the commander to consider in selecting a panel. After WWII, there were more concerns about military justice, and, in particular, the problem of unlawful command influence of the courts-martial. Congress again made reforms to the Articles by attempting to solve the problem of unlawful command influence by prohibiting the convening authority and other commanders from censuring, reprimanding, admonishing, coercing, or unlawfully influencing any member in reaching the findings or sentence in any case.
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
s conducted by the U.S. military
Military of the United States
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...
. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
(or UCMJ), which is the U.S. military's criminal code. However, they can also be convened for other purposes, including military tribunal
Military tribunal
A military tribunal is a kind of military court designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and fulfill the role of jurors...
s and the enforcement of martial law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...
in an occupied territory
Occupied territories
Occupied territory is territory under military occupation. Occupation is a term of art in international law; in accordance with Article 42 of the Laws and Customs of War on Land ; October 18, 1907, territory is considered occupied when it is actually placed under the authority of the hostile army...
. Courts-martial are governed by the rules of procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
and evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
laid out in the Manual for Courts-Martial
Manual for Courts-Martial
The Manual for Courts-Martial is the official guide to the conduct of Courts-martial in the United States military. An Executive Order of the President of the United States, the MCM details and expands on the military law in the Uniform Code of Military Justice...
, which contains the Rules for Courts-Martial, Military Rules of Evidence, and other guidance.
Courts-martial are adversarial proceedings
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
, as are all United States criminal courts
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
. That is, lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s representing the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
and the accused
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
present the facts, legal aspects, and arguments most favorable to each side; a military judge determines questions of law, and the members of the panel (or military judge in a judge-alone case) determine questions of fact
Question of fact
In law, a question of fact is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles...
.
Historical development
From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its BritishKingdom of Great Britain
The former Kingdom of Great Britain, sometimes described as the 'United Kingdom of Great Britain', That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN. was a sovereign...
predecessor, predates the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.
Tribunals for the trial of military offenders have coexisted with the early history of armies. The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces. Both the ancient Greeks and the Romans had military justice codes, although no written versions of them survive. Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.
The greatest influence on the modern court-martial comes from the Court of Chivalry
Court of Chivalry
Her Majesty's High Court of Chivalry of England and Wales is a civil court in England. It has had jurisdiction in cases of the misuse of heraldic arms since the fourteenth century....
in England and the military code of Sweden's King Gustavus Adolphus. These courts both struck a balance between the demands of good order and discipline and the concepts of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War
Articles of War
The Articles of War are a set of regulations drawn up to govern the conduct of a country's military and naval forces. The phrase was first used in 1637 in Robert Monro's His expedition with the worthy Scots regiment called Mac-keyes regiment etc. and can be used to refer to military law in general...
. The early British Articles of War reflected a concern for due process and panel member composition.
When war broke out
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
between the American Colonists and the British in 1775, the British were operating under the 1765 edition of the Articles of War. This version would serve as the template for military justice in the Continental Army
Continental Army
The Continental Army was formed after the outbreak of the American Revolutionary War by the colonies that became the United States of America. Established by a resolution of the Continental Congress on June 14, 1775, it was created to coordinate the military efforts of the Thirteen Colonies in...
. When the United States declared independence and fought the Revolutionary War, "it had a ready-made military justice system." Despite the Colonists' dissatisfaction with the British, they still recognized the intrinsic value of the British military justice system in providing good order and discipline to its own armed forces.
While the 1765 British Articles of War were the template for the American military justice system, the Founding Fathers decided to break away from the British system in significant ways. First, the American Articles of War were created by a legislative enactment and not by an executive order. In the American system, the legislature undertook the government of the armed forces from the beginning - military justice was not going to be left to the executive. Second, Congress demonstrated its flexibility and willingness to change the Articles as necessary. The top military lawyer, Colonel William Tudor, informed Congress that the Articles were in need of revision. Congress would go on to revise the Articles several times to reflect the realities of a small military force. Nonetheless, the commander retained his role in the administration of justice.
The Founding Fathers
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
perceived the weaknesses and merits of the British Articles of War. They updated, revised, and provided flexibility to a rigid legal system, with concerns for due process and the importance of providing good order and discipline to its own armed forces. The Founding Fathers maintained the role of the commander in military justice. Once independence was achieved, the Founding Fathers could create a "more perfect Union" and assign the military its proper place within it.
81st Congress sets out to create the UCMJ
The Eighty-First Congress set out to create a unified system of military justice for all the services, and appointed a committee chaired by Harvard Law Professor Edmund Morgan to study military justice and draft appropriate legislation. According to Professor Morgan, the task was to draft legislation that would ensure full protection of the rights of individuals subject to the UCMJ without unduly interfering with either military discipline or the exercise of military functions. This would mean a "complete repudiation of a system of military justice conceived of only as an instrument of command," but would also negate "a system designed to be administered as the criminal law is administered in a civilian criminal court." The result was the Uniform Code of Military Justice or UCMJ - a code that granted unprecedented rights to service members, while still retaining command control over the appointment of court-martial members.The UCMJ was not an ideal system of justice, but given its purpose of sustaining good order and discipline within the military without unduly impairing operations, it could not be. Many individuals, groups, and organizations protested, but Congress retained the commander as the central figure of the military justice system. However, Congress significantly modified the commander's powers and added statutory checks and balances to limit outright despotism.
Subsequent measures in Congress on UCMJ
The next time Congress had formal hearings on the UCMJ was when it passed the Military Justice Act of 1983. In 1999, the Secretary of DefenseUnited States Secretary of Defense
The Secretary of Defense is the head and chief executive officer of the Department of Defense of the United States of America. This position corresponds to what is generally known as a Defense Minister in other countries...
was required by Congress to study the issue of command selection of panel members. Congress did not take action when the Joint Services Committee (JSC) concluded that the "current system is most likely to obtain the best members within the operational constraints of the military justice system."
In 2001, the Commission on the 50th Anniversary of the Uniform Code of Military Justice disagreed with the 1999 JSC Report, noting "there is no aspect of military criminal procedure that diverges further from civilian practice, or creates a greater impression of improper influence than the antiquated process of panel selection."
Constitutional foundation for courts-martial
The Framers of the Constitution were cognizant of the power struggle between Parliament and the King regarding the powers of the military. Many of the Framers were combat veterans from the Continental Army and understood the demands of military life and the need for a well-disciplined fighting force. The solution to the government of the armed forces was a classic balancing of constitutional interests and powers. They assured that Congress - with its responsiveness to the population, its fact-finding ability, and its collective deliberative processes - would provide for the government of the armed forces.The Framers of the Constitution had a great respect for the value of separation of powers. One of the primary goals of the Constitutional Convention, in remedying the defects of the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
, was to create a government in which separate branches of power served as a check and balance against the other. Principles of separation of powers also applied to the military. The Framers vested power in the executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
and legislative branches, but left the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
with only a collateral role in governing the armed forces.
By distributing power over the armed forces between the legislative and executive branches, the Framers "avoided much of the political-military power struggle which typified so much of the early history of the British court-martial system." Moreover, the Framers made it clear that while the command of the military lie with the executive, the military would be governed and regulated according to the law handed down by the legislative branch. Therefore, the government of the armed forces would always reflect the will of the people as expressed through their representatives in Congress.
After ratification of the Constitution in 1789, the First Congress undertook legislative action to provide for the government and regulation of the armed forces. On September 29, 1789, the Congress expressly adopted the Articles of War that were currently in place for the Army. xxvii It can thus be said that Congress continued the court-martial as previously established, and "the court-martial is perceived to be in fact older than the Constitution, and therefore older than any court of the United States instituted or authorized by that instrument."
The Framers consciously placed the court-martial and military law
Military law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
in the legislative branch of the government. The First Congress and the Framers were also cognizant of the age and history of the court-martial with commander involvement, as well as the customs and traditions that pertained to it.
Types of court-martial
There are three types of courts-martial—summary, special and general. A conviction at a general court-martial is equivalent to a civilian conviction in a federal district courtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
. Special courts-martial are considered "federal misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
courts" because they cannot impose confinement longer than one year. Summary courts-martial have no civilian equivalent.
Summary Court-Martial
Trial by summary court-martial provides a simple procedure for resolution of charges of relatively minor misconduct committed by enlisted members of the military. The summary court-martial consists of one individual. That one officer acts both as prosecuting attorney and defense counsel. The maximum punishmentPunishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
at a summary court-martial varies with the accused's paygrade. If the accused is in the pay grade of E-4 or below, he or she can be sentenced to 30 days of confinement, reduction to pay grade E-1, or restriction for 60 days. Punishments for servicemembers in paygrades E-5 and higher are similar, except that they can only be reduced one paygrade and cannot be confined.
Military members who refuse UCMJ Article 15 nonjudicial punishment
Nonjudicial punishment
Non-judicial punishment in the United States military, is a form of military justice authorized by Article 15 of the Uniform Code of Military Justice. Non-judicial punishment or "NJP" permits commanders to administratively discipline troops without a court-martial...
can be referred for special court-martial. Usually this decision is made after the commanding officer consults with the command's JAG officer. The accused must consent to trial by summary court-martial before the court can commence.
Special Court-Martial
A special court-martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than forfeiture of two-thirds basic pay per month for one year, and additionally for enlisted personnel, one year confinement (or a lesser amount if the offenses have a lower maximum), and/or a bad-conduct discharge.General Court-Martial
In a general court-martial, the maximum punishment is that set for each offense under the Manual for Courts-MartialManual for Courts-Martial
The Manual for Courts-Martial is the official guide to the conduct of Courts-martial in the United States military. An Executive Order of the President of the United States, the MCM details and expands on the military law in the Uniform Code of Military Justice...
(MCM), and may include death
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
(for certain offenses), confinement, a dishonorable or bad conduct discharge for enlisted personnel, a dismissal for officers, or a number of other forms of punishment. Before a case goes to a general court-martial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted, unless waived by the accused. An accused before any court-martial is entitled to free legal representation by military defense counsel (ADC-area defense counsel), and can also retain civilian counsel at his or her expense.
Detention before trial
Under Article 10 of the UCMJ, 'immediate steps' should be taken to bring the accused to trial. Although there is currently no upper time limit on detention before trial, Rule 707 of the Manual for Courts-Martial prescribes a general maximum of 120 days for 'speedy trial'. Under Article 13, punishment other than arrest or confinement is prohibited before trial, and confinement should be no more rigorous than is required to ensure the accused's presence at his trial.Composition of the Court
Under Article 25 of the UCMJ, members of the court are selected from members of the armed forces by the convening authority.Although the Founding Fathers of the United States
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
guaranteed American citizens the right of a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
trial both in the text of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
and in the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
, they determined that Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
would establish the rules for disciplining the armed forces. From the beginning, Congress has retained the long-standing practice whereby, contrary to the principle of random jury selection
Jury selection
Jury selection are many methods used to choose the people who will serve on a trial jury. The jury pool is first selected from among the community using a reasonably random method. The prospective jurors are then questioned in court by the judge and/or attorneys...
, the convening authority personally selects the members of a court-martial panel. Whether this practice is conducive to fair process has been the subject of critical investigation.
A court-martial has always been an ad hoc
Ad hoc
Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....
tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
created and appointed by the order of a commanding officer
Commanding officer
The commanding officer is the officer in command of a military unit. Typically, the commanding officer has ultimate authority over the unit, and is usually given wide latitude to run the unit as he sees fit, within the bounds of military law...
, as the convening authority, the tribunal is established the express purpose of considering a set of charges that the commander has referred to the court. The convening Authority considers the statutory prescription offered by the United States Congress, those "best qualified," in selecting the "panel" or jury for the court-martial. In turn, the members of the court-martial, who are generally under the command of the convening authority, take an oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
to "faithfully and impartially try, according to the evidence, their conscience, and the laws applicable to trial by court-martial, the case of the accused." By their oath, the panel members expressly agree to leave behind any influence from the commander who appointed them. The current practice in the United States Armed Forces is to appoint a number of officers to a standing panel of members. In cases where the accused is an enlisted member, the accused may request that enlisted service members be appointed to the panel.
The appointed or retained defense attorney may challenge both the military judge and members of the panel for cause. However, the military judge determines the relevance and validity of any challenge. The prosecution and defense initially possess one peremptory challenge to members of the court-martial. The accused may also challenge a member of the panel for cause "at any other time during trial when it becomes apparent that a ground for challenge exists." The UCMJ prohibits a convening authority from unlawfully influencing the court. A defense attorney may bring a motion to challenge the validity of the court-martial where it appears that a convening authority has unlawfully influenced court-martial members.
Appeals in courts-martial
There are procedures for post-trial review in every case, although the extent of those appellate rights depends upon the punishment imposed by the court and approved by the convening authority. Cases involving a punitive discharge, dismissal, confinement for one year or more, or death will undergo automatic review by the appropriate military Court of Criminal Appeals. Further review is possible to the Court of Appeals for the Armed Forces.Intermediate courts of criminal appeals
If a service member is court-martialed and they feel that the result was unjust, then the service member can submit their case to the convening authority, which is the commander (usually a general or admiral) that originally established the court-martial panel. This is similar to asking a civilian governor for clemency or a pardon. After such clemency requests, the service member may also submit their case for review to the Court of Criminal Appeal for their branch. These courts are:- Army Court of Criminal AppealsArmy Court of Criminal AppealsIn the United States military, the Army Court of Criminal Appeals is an appellate court that reviews certain court martial convictions of Army personnel.-Jurisdiction:...
- Navy-Marine Corps Court of Criminal Appeals
- Air Force Court of Criminal AppealsAir Force Court of Criminal AppealsThe Air Force Court of Criminal Appeals is an independent appellate judicial body authorized by Congress and established by the Judge Advocate General of the Air Force pursuant to the exclusive authority under . The Court hears and decides appeals of United States Air Force court-martial...
- Coast Guard Court of Criminal AppealsCoast Guard Court of Criminal AppealsThe Coast Guard Court of Criminal Appeals is the intermediate appellate court for criminal convictions in the U.S. Coast Guard. It is located in Arlington, Virginia....
These Courts of Criminal Appeals can correct any legal error they may find, and they can reduce an excessive sentence. The accused will be assigned an appellate defense counsel to represent him or her at no cost before the Court. Civilian counsel may be retained at the accused's own expense.
Court of Appeals for the Armed Forces
From these intermediate courts of appeal, a service member, if sentenced to more than a year confinement or to a punitive discharge or dismissal may also petition the nation's highest military court - the United States Court of Appeals for the Armed Forces (CAAF). This court consists of 5 civilian judges, appointed for a fifteen year term, and it can correct any legal error it may find. Appellate defense counsel will also be available to assist the accused at no charge. Again, the accused can also be represented by civilian counsel, but at his or her own expense. Review by the CAAF is discretionary and a limited number of cases are reviewed each year. For the year ending September 1, 2009, the CAAF had 1,002 cumulative filings and disposed of 1,033 cases. Of these 1,033 cases, 46 were disposed of by signed or per curiam opinions and 987 were by memorandum or order. (By comparison, the US Supreme Court2009 term opinions of the Supreme Court of the United States
This is a list of the opinions of the Supreme Court of the United States delivered during its 2009 term, which began October 5, 2009 and concluded October 3, 2010...
issued signed 46 opinions in 2009.)
Request for Pardon
As a final measure of appeal, a convicted service member may also petition the President of the United States for a reprieve or pardonPardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
under the Constitutional authority granted in Article II
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
, Section 2.
Courts-Martial and appellate courts as legislative (Article I) courts
In parsing the debate about command selection of jury members, it is important to place the court-martial in its context as a legislative (Article IArticle One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
) court. Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
courts do not handle all of the judicial business in the United States. For over two hundred years, Congress has used its enumerated powers
Enumerated powers
The enumerated powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of...
under the Constitution in conjunction with the Necessary and Proper Clause to create specialized tribunals, including courts-martial, which are free from the protections of Article III. There are no constitutional infirmities in the creation of these courts. In fact, these courts help Congress carry out its enumerated powers efficiently - the court-martial is an example where the protections, procedures, and inherent inefficiencies of Article III courts would interfere with the military's ability to use the system effectively to help maintain good order and discipline. In fact, Article I, Section 8 of the Constitution says Congress shall have the power "To make Rules for the Government and Regulation of the land and naval forces."
Even where life and liberty are at stake, legislative courts are not required to grant due process rights that are intrinsic to the Article III courts. The Supreme Court has, instead, employed an analysis that examines whether the statutory due process system of a given legislative court grants what it calls "fundamental rights." The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
simply applies a different constitutional analysis to legislative courts than to Article III courts.
Of all the legislative courts created by Congress, courts-martial have received the most deference from Article III courts. Under a standard of review known as the "separate community" or "military deference" doctrine, the courts have proclaimed the armed forces to be a distinct subculture with unique needs, "a specialized society separate from civilian society." While some scholars have argued against the idea of a separate legal system for the military, the Article III courts continue the doctrine of deference. Where there is a conflict between the constitutional rights of the individual service member and an asserted military purpose, the courts have deferred to Congress' ability, and duty, to balance the appropriate factors and reach a necessary compromise.
Today's court-martial system, including command selection of jurors, would seem to pass muster under the Supreme Court's constitutional analysis for legislative courts. The accused enjoys due process rights similar to the "fundamental rights" the Court recognized in other legislative courts. A defendant has many rights, including:
- assistance of counsel at all levels of the court-martial;
- information of the charges brought against the defendant, including a bill of particularsBill of ParticularsIn law, a bill of particulars is a detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor given upon the defendant's formal request to the court for more detailed information...
; - a speedy trialSpeedy trialSpeedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...
; - compulsory process of witnessWitnessA witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
es and evidence; - the privilege against self-incriminationSelf-incriminationSelf-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
; and - extensive appellate review.
When placed in its context as a legislative court, the statutory grant of due process in a court-martial compares favorably with what an accused criminal can demand as a matter of right in other legislative courts. The balance that Congress has struck between an individual's rights and the purposes of the military will not lightly be disturbed by an Article III court.
Congressional oversight
The Framers consciously placed the government and regulation of the military in the hands of the legislative branch. Congress has provided oversight of the military jury selection process since the Founding. In over two hundred and twenty-five years of congressional control over the court-martial system, the practice of command selection of the jury has survived every attack. Over the years, Congress has statutorily limited the discretion of the convening authority and created a justice system that seeks to balance the legitimate needs of the military with the demands of due process.Following both World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
and World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, there were outcries for Congress to reform military justice. When the troops returned from WWI, the public was outraged with stories of miscarriages of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
. This led to the first public movement to civilianize military law. In 1920, Congress made revisions to the Articles of War. This led to the imposition of a set of personal criteria for the commander to consider in selecting a panel. After WWII, there were more concerns about military justice, and, in particular, the problem of unlawful command influence of the courts-martial. Congress again made reforms to the Articles by attempting to solve the problem of unlawful command influence by prohibiting the convening authority and other commanders from censuring, reprimanding, admonishing, coercing, or unlawfully influencing any member in reaching the findings or sentence in any case.
Access to the U.S. Supreme Court after appeals
In certain limited circumstances, service members have their cases heard by the Supreme Court. Since 2005, various bills have been introduced in Congress to give service members an appeal of their cases to the United States Supreme Court. None of these bills has been enacted, but as of 2010 there is legislation pending.Further reading
- Macomb, Alexander, Major GeneralCommanding General of the United States ArmyPrior to the institution of the Chief of Staff of the United States Army in 1903, there was generally a single senior-most officer in the army. From 1783, he was known simply as the Senior Officer of the United States Army, but in 1821, the title was changed to Commanding General of the United...
of the United States ArmyUnited States ArmyThe United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
, The Practice of Courts Martial, (New York: Harper & Brothers, 1841) 154 pages. - Macomb, Alexander, A Treatise on Martial LawMartial lawMartial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...
, and Courts-Martial. (Charleston: J. Hoff, 1809), republished (New York: Lawbook Exchange, June 2007), ISBN 1584777095, ISBN 978-1584777090, 340 pages. - Saltzburg, Stephen; Schinasi, Lee D; & Schluster, David A., Military Rules of Evidence Manual. (Newark: LexisNexis, January 2003). ISBN 0872159698; ISBN 9780327163299.
See also
- Nonjudicial punishmentNonjudicial punishmentNon-judicial punishment in the United States military, is a form of military justice authorized by Article 15 of the Uniform Code of Military Justice. Non-judicial punishment or "NJP" permits commanders to administratively discipline troops without a court-martial...
- Manual for Courts-Martial (MCM), United States (2008 Edition) PDFPortable Document FormatPortable Document Format is an open standard for document exchange. This file format, created by Adobe Systems in 1993, is used for representing documents in a manner independent of application software, hardware, and operating systems....
document - Manual for Courts-Martial (MCM), United States (2005 Edition) PDFPortable Document FormatPortable Document Format is an open standard for document exchange. This file format, created by Adobe Systems in 1993, is used for representing documents in a manner independent of application software, hardware, and operating systems....
document - The 1992 trial film A Few Good MenA Few Good Men (film)A Few Good Men is a 1992 drama film directed by Rob Reiner and starring Tom Cruise, Jack Nicholson, and Demi Moore. It was adapted for the screen by Aaron Sorkin from his play of the same name. A courtroom drama, the film revolves around the trial of two U.S...
centers around a court-martial in the United States, and is one of several trial moviesTrial moviesTrial movies is a film genre, also commonly referred to as courtroom drama.-The American Bar Association's list:In 1989, the American Bar Association rated the twelve best trial films of all time, and provided a detailed and reasoned legal evaluation for its choices. Ten of them are in English; M...
that do so.