General Courts Martial Selection Process

On behalf of Law Offices of David P. Sheldon posted in Courts-Martial on Monday, November 16, 2015.

It may surprise you to learn that the current criminal justice system applied by all branches of the U.S. armed forces predates the current Uniform Code of Military Justice (UCMJ) by several years...approximately 2,000 years, in fact. The origins of the courts-martial process for a member of the military stretches as far back as the Roman legions, conducted under the auspices of the maqistri militum.

In today's American military, when a servicemember is accused of a criminal offense or misconduct, an Article 32 hearing will be convened to determine whether the member should be tried under one of three levels of courts-martial.

Types of courts-martial include: 1) Summary Court-Martial, typically used for resolving minor offenses or incidents of misconduct; 2) Special Court-Martial, limited to offenses and UCMJ violations that may result in confinement up to 12 months and; 3) General Court-Martial, reserved for the most serious offenses generally the equivalent of a civilian felony charge.

How Is The Panel Selected?

The UCMJ does not allow attorneys to participate in a "jury" selection process, as in civilian criminal courts. Except in cases involving capital punishment, the convening authority for the court-martial will appoint a panel of at least five commissioned officers from a pre-determined list. (Capital offenses require a minimum of 12 jury members.) Under section 903 of the Rules for Courts-Martial (R.C.M.) , an enlisted servicemember has the right to demand that noncommissioned officers (NCO) are also represented on the panel. The servicemember may also request that the case be heard entirely in front of the military judge alone.

Neither the prosecutor nor the defense attorney has the right to request a dismissal of any of the appointed panel members, except if it can be demonstrated that a member should be removed for cause.

General Courts-Martial Are Adversarial

Similar to a trial in the civilian criminal justice system, there will be a military prosecutor and the defendant will have the right to defense counsel, either appointed by the military or hired independently. During the pre-trial proceedings, attorneys for both sides will have one opportunity to present arguments to supress or include evidence, which the military judge must decide upon. During the trial, the prosecutor and the defense lawyer will have the opportunity to examine and cross-examine the defendant and witnesses and make final arguments in front of the panel.

For enlisted servicemembers in particular, the panel appointment phase of the trial can be critical. Your defense attorney will need experience knowing whether a panel of officers will likely understand the circumstances from your enlisted perspective, or whether NCOs may demonstrate a sense of empathy, given the circumstances of the offense. Under certain conditions, eliminating the panel altogether may be to your best advantage.

If you are facing an Article 32 hearing leading to a possible General Court-Martial, make sure you have an experienced military defense attorney on your side from the first step. The Law Offices of David P. Sheldon, in Washington, D.C., provides aggressive military defense services for enlisted and commissioned servicemembers of all branches around the world.