Court Martial Procedure - U.s. Military

Courts Martial Procedure

Court martial trials are procedurally similar to civilian criminal trials. Military trials involve a prosecutor (trial counsel), defense attorney,1 military judge,2 bailiff, court reporter,3 and if elected by the defendant, a panel of military members (a jury).4

A military panel is comprised of officers and enlisted personnel from the same command or from the same community as the accused. All members of the panel must outrank the accused. The military panel is selected by the convening authority based on various factors such as experience, rank, and age.5

The accused is entitled to an impartial court martial panel. While the prosecution and defense may voir dire the panel, questioning is often limited by the military judge. Both sides may challenge panel members for cause. However, each side may preemptively strike only one panel member.6

Court martial proceedings are open to the public and the media with a few exceptions. For example, the military judge may close the proceedings when classified information will be disclosed.7

The accused may choose to have the judge, rather than the panel, decide his or her guilt or innocence. However, if the accused elects to be tried by a panel, then the panel also will decide the sentence to be imposed. Likewise, if the accused elects to be tried by a judge alone, then the judge will determine the sentence.8

Also unique to military trials, when the prosecution and defense have finished questioning any witness, the panel may ask questions of the witness.9

Right to Counsel

In the military justice system, a service member facing court martial has three options when electing counsel. First, he or she may select to be represented by a military defense counsel at no cost. Second, he or she may request another free military attorney by name. If that attorney is available, then he or she will be appointed to represent the accused. Third, the accused may hire a civilian defense counsel. If the accused elects to hire a civilian defense lawyer, then the accused is responsible for paying the civilian attorneys fees and travel expenses. Nevertheless, the accused may request to keep his or her military attorney on the case to assist with the defense as well.10

Deliberations on the Findings

In the military system, hung juries do not exist. In order to find a defendant guilty, two-thirds of the panel must vote for a finding of guilty. The only exception is death penalty cases, which require an unanimous verdict. At a court martial, the burden of proof is the same as in any civilian criminal court. The prosecution must prove that the accused is guilty of all elements of the offense beyond a reasonable doubt.11

Deliberations on the Sentencing

If the accused is found guilty of an offense, then sentencing proceedings begin immediately. During the sentencing proceedings, the prosecution presents evidence in aggravation, victim impact, and effect on the units discipline and morale.

The defense is permitted to present extenuating and mitigating evidence in an attempt to gain a lower sentence. Both sides are permitted to offer witness testimony and documentary evidence. It is common for military sentencing case to last several hours or longer. Both the prosecution and defense are permitted to give sentencing arguments to the court members or military judge.12

When determining what sentence to impose, two-thirds of a panel must agree on the sentence, unless the sentence is for more than 10 years or life, in which case three-fourths of the panel must agree. In death penalty cases, the panel must unanimously agree on death.13

You have read the best review article categorized by real estate attorney and the title Court Martial Procedure - U.s. Military. You can bookmark or spread this post by using this URL https://realestateattorney-tips.blogspot.com/2012/09/court-martial-procedure-us-military.html. Thank You!