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What to expect from a court-martial

On Behalf of | Jul 26, 2021 | Military Law

It can be daunting anytime you find out that you’re facing criminal charges. It may be harder to digest if you’re facing court-martial, though. Your ability to remain in the military may be contingent on how your case unfolds.

The court-martial process can seem quite foreign if you’ve never known anyone to go through it. Attorneys who work in the area of military law are few and far between. It can be helpful to know the basics of what to expect as your case unfolds.

Different stages of the court-martial process

Military investigators may bring any potential violations of the Uniform Code of Military Justice (UCMJ) to a service member’s commanding officer’s (CO) attention. The CO decides whether there is probable cause to detain the service member for 72 hours. The CO will need to inform the soldier of the reason for their arrest and whether they plan to issue a “non-judicial” punishment or court-martial within that time frame.

The case must be sent to a military judge within 120 days of a commander notifying the service member of the specific charge(s) against him. This is known as preferral of charges.  In some cases, a servicemember is entitled to a probable cause hearing or Article 32 Preliminary Hearing which is presided over by a neutral Judge Advocate.  Once the case has been referred, it will go in front of a military judge. The military judge will then ask the accused to enter a plea.

The case will generally proceed to trial after a servicemember enters a not-guilty plea and any motions are heard. The convening authority will personally select a panel of high-ranked, commissioned officers from other units to hear the case. The accused can also petition the court to add enlisted service members to the panel. Each panel member will have to take an oath agreeing not to let any biases affect their ability to decide the facts in the service member’s case.  This is further ensured through voir dire of the panel members.

Civilian criminal trials and court-martial ones unfold similarly. The service member and the prosecutor both have an opportunity to present their sides of the case and question witnesses. The presiding judge reads over the laws that apply and instructs the panel on how to reach a decision. Either the judge or panel can impose a sentence, provided it aligns with the UCMJ sentencing guidelines.

Skilled guidance in navigating the court-martial process can prove invaluable

One mistake many service members facing court-martial make is allowing a military-provided attorney or one only familiar with civilian law to represent them. An attorney who has experience in representing service members in military court will have the necessary experience to let you know how to best defend yourself in a court-martial case.