Guide to the Court Martial Process

A court-martial is a trial in a military court of law. Service members who commit a crime, violating the Uniform Code of Military Justice (UCMJ) of the US armed forces, are potentially subject to a court-martial. The UCMJ includes offenses such as arson, conspiracy, larceny, or manslaughter, which are crimes in common with the civilian criminal code. Also included are crimes such as insubordination, desertion, and mutiny – offenses unique to the armed forces.

If you or a loved one is facing the court-martial process, you’ll want to consult with military defense attorneys familiar with the UCMJ, courts-martial, and civilian law. Please contact the Colorado Springs military defense attorneys at Anaya-McKedy, PC, at 719-259-5516.

What is the scope of the UCMJ?

Service members in any branch of the US armed forces, including those stationed at Fort Carson and Peterson Air Force Base, are subject to a potential court-martial for a UCMJ violation. The UCMJ applies to the following people:

  • Active duty service members
  • Service members in the reserves while on duty
  • National Guard service members while in federal service
  • Cadets and midshipmen
  • Retired, regular service members entitled to pay
  • Retired, reserve service members receiving VA medical care
  • Persons remanded to the US armed forces, serving a sentence decided by a court-martial
  • Fleet Reserve and Fleet Marine Corps Reserve members
  • Staff from the National Oceanic and Atmospheric Administration, Public Health Services, and other organizations working with or serving with the US military

Courts-martial are conducted using guidelines from the Manual for Courts-Martial (MCM).

Are there different kinds of courts-martial?

The US military has three different types of courts-martial:

  • Summary court-martial
  • Special court-martial
  • General court-martial

Summary Court-Martial

A summary court-martial is a streamlined process for handling accusations of minor offenses committed by service members. Summary courts-martial are reviewed by a commissioned officer (O-3 or above) and don’t involve a military judge or attorneys from the US Judge Advocate General (JAG).

The officer in charge of the case reviews the facts of the case, legal precedent, and sentencing guidelines before ruling. Sentences for service members found guilty in a summary court-martial case may include the following:

  • 30 days confinement
  • 45 days of hard labor
  • 60 days restriction to base or barracks
  • Reduced pay for one month
  • Reduction in rank

The US Air Force is the only military branch that offers free defense counsel for summary courts-martial.

Special Court-Martial

A special court-martial handles more extreme offenses and is similar to civilian criminal trials in that it has prescribed phases: discovery, pretrial motions, trial, and sentencing

A military judge presides over a special court-martial and a prosecuting attorney is assigned. A defense attorney is assigned to the case under specific conditions. Three service members serve as the jury and deliberate the facts of the case. However, the accused may request that the judge decides in the case. These are the maximum penalties that a judge may assign in a special court-martial:

  • One year of imprisonment
  • Six months without pay
  • Three months of hard labor
  • A bad conduct discharge

The serious cases warranting a special court-martial need a strong defense. The experienced military defense attorneys at Anaya-McKedy can fight to win your case.

General Court-Martial

A general court-martial is for prosecuting the most severe offenses. They are similar to special courts-martial by having a military judge and opposing counsel. However, general courts-martial have a five-member jury panel for non-capital crimes and ten or more members for capital offenses. The accused has the right to ask the judge to decide their case in a general court-martial – another similarity to a special court-martial. However, this option is not available if the prosecution seeks the death penalty.

Sentencing for general courts-martial allows the presiding military judge to impose the maximum sentences allowed by the UCMJ or the MCM:

  • Dishonorable discharge
  • Life imprisonment
  • Death

Offenses requiring a general court-martial need experienced military defense attorneys to succeed in court. Let the team at Anaya-McKedy lead your legal defense.

How does the court-martial process work?

Courts-martial are generally similar to civilian criminal court proceedings with essential differences in a few key areas.

Initiating Charges

A service member’s commanding officer (CO) is informed of their violation of the UCMJ. If the CO believes there is probable cause that the service member violated the code, the CO can order the service member’s apprehension and confinement for up to 72 hours. During the pretrial confinement period, the CO can decide how to best proceed with the case.

The CO may choose a non-judicial form of punishment instead of a court-martial. The accused can appeal their CO’s decision if they believe the punishment is unjust. If the CO chooses to proceed with a court-martial, it must convene within 120 days of the service member’s arrest.

A convening authority may override the CO’s decision and convene a court-martial regardless. Convening authorities include the Secretary of the military branch of the accused, the Secretary of Defense, and the President of the United States.

A court-martial begins with “preferring the charges, “when the prosecutor reads the charges against the accused before a commanding officer and a neutral third officer. Legal representation and a military judge are assigned. The prosecution and the defense conduct an investigation into the facts of the case, review documents, and collect depositions. The investigation may continue throughout the court-martial proceedings, unlike in a civilian trial.

Entering a Plea

After preferring charges, the accused may enter a plea. Guilty pleas are only accepted when the military judge believes the accused has fully understood the charges against them and the consequences, or in cases where the prosecution is not seeking the death penalty. In these cases, sentencing occurs after the military judge accepts a guilty plea.

The Trial

When the accused enters a not-guilty plea, the court-martial goes to trial, and the judge selects a panel to deliberate the facts of the case. Officers chosen for the panel are usually higher ranking and from a different unit than the accused. The accused has the right to ask for enlisted service members to participate in the panel, too.

The panel members must take an oath before the trial, stating they will determine the facts impartially and without outside influence. Panel members may not be subject to disciplinary action for their findings or conclusions.

A court-martial trial is similar to a civilian trial. Each side presents evidence and may cross-examine witnesses. The military judge informs the panel of the applicable law, and they then deliberate and issue a decision. If they find the accused guilty, either the military judge or the panel sentences the accused according to the applicable UCMJ sentencing guidelines.

What are the rights of the accused?

The accused has certain rights during a military court-martial trial proceeding:

  • The right to be informed of the charges against them
  • The right to remain silent
  • The right to defense counsel
  • Protection against double jeopardy, or being tried for the same crime twice
  • The right to an appeal (including cases involving a death penalty sentence, which are appealed automatically)

Can the accused consult with a private attorney?

Service members are encouraged to seek the counsel of a civilian defense attorney specializing in military law. Don’t risk your military career and future civilian life. Contact Anaya-McKedy today to speak with experienced military defense legal representation regarding your court-martial case.