Introduction

By Otto Kreisher

If you have been assigned to cover a military trial, known as a court martial, the first thing you may need to do is get over the idea that you will be facing some exotic process. If you have covered a civilian criminal trial you already are familiar with most of what you will experience with a court martial.

George Washington 1778 Court Martial Authorization

George Washington’s 1778 letter authorizing a court martial for William Seeds and Samuel Carter. (University of Houston)

Most of the basic structures and players are the same, although some will have different names in the military trial, which will be explained later.

The one immediate difference is that you will have to contact the public affairs office of the military installation on which the trial is to be held to arrange for access to the base and the trial site.

Photographers almost always will be barred, as they are in most civilian courts.

Despite the old saying that military justice is an oxymoron, the military system is in some ways more fair than the civilian criminal justice system.

In the interest of full disclosure, I should note that I am a veteran of 25 years active and reserve military service, which included not only flying duties but stints as the legal officer in two Navy squadrons and as a court martial defense counsel.

Military justice has had a “Miranda rule” protection against self-incrimination, under Article 31, since the current process was established with the Uniform Code of Military Justice in 1951, 15 years before the Supreme Court established such a right in the civil arena in the 1966 Miranda vs. Arizona ruling.

The investigation that must precede filing of charges against the defendant, called the accused in military justice, under the UCMJ’s Article 32 is different than a civil Grand Jury. Article 32 provides for an open process in which the accused and his or her counsel may appear, present exculpatory evidence and question the government’s witnesses.

Grand juries, on the other hand, are closed procedures in which only the prosecutor presents evidence and witnesses. The defendant usually does not know it has taken place until charges are filed.

The UCMJ also provides for automatic reviews of convictions and sentences and, in instances of more serious penalties, for appeals without any action by the accused’s counsel.

The first review is by the convening authority – the commanding officer of the unit, who has the power to determine if charges should go to a trial and at what level. The convening authority usually heads a major command and often will be a general or a Navy admiral.

Army Maj. Nadal Malik Hasan

Army Maj. Nadal Malik Hasan

In the case of Army Maj. Nadal Malik Hasan, accused of multiple murders at Fort Hood, Texas, the convening authority is a three-star lieutenant general.

The convening authority can overturn a conviction, reduce it to a lower offense and/or nullify or reduce the sentence.

If the sentence, as approved by the convening authority, includes death, a bad conduct or dishonorable discharge, dismissal of an officer or confinement for one year or more, the case automatically is reviewed by an intermediate military court of criminal appeals. There are such courts for each of the armed services and the Coast Guard.

Appeals above that level, to the U.S. Court of Appeals for the Armed Forces or to the Supreme Court, require action by the accused’s counsel.

The need for a separate system of justice for the military was recognized in the Fifth Amendment to the Constitution, which exempted the requirement for a Grand Jury indictment “in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”

As with the civil criminal justice system, the practice of military justice can be revised by rulings of federal courts, including the Court for the Armed Forces, and by enacted U.S. laws.

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