Fundamentals of the Military Justice System
There are four levels of military tribunals, three of which reporters probably never would be asked to cover.
The lowest and most common proceeding is provided under Article 15 and is referred to as nonjudicial punishment. Used for the most minor charges, NJP is conducted by the accused’s unit commanding officer, who acts as judge and jury. The accused can present favorable witnesses and the commanding officer normally will asked for evaluations from the accused’s immediate supervisors.
Punishments are sharply limited. The accused has the right to refuse NJP and request a court martial, which is a gamble because it could result in more severe punishment.
The next two levels are the Summary Court Martial and the Special Court Martial, which have more of the trappings of a civil court. But the charges referred to those courts martial seldom will warrant media attention.
There are some differences in terminology that apply to all courts martial. First, the defendant, as noted before, is the accused, the prosecutor is called the trial counsel, but the accused’s representative is the familiar defense counsel.
The presiding official used to be called the Law Officer but now is commonly referred to as judge.The jury, however, is called the Court. It will be headed by the senior officer, called the president of the court. The president of the court has more authority than a jury foreman, including deciding, in consultation with the judge and counsels, the times for convening, recessing and adjourning.
Like a foreman, the president presides over the Court’s closed deliberations and announces verdicts and sentences.
Court martial members normally are officers. In a trial involving an officer, the members will be of equal or superior rank. An accused enlisted member may request other enlisted personnel on the Court. In that case, enlisted personnel must represent at least one-third of the jury. But they must be senior in rank and from a different unit.
The accused also may request trial solely before a judge.
The judge will be a senior military lawyer, a member of his or her service’s judge advocate general, or JAG, corps. The trial counsel also will be a JAG officer. The accused will have a JAG officer appointed as counsel, but may have a civilian lawyer at the accused’s expense.
In a Summary Court Martial, the court, or jury, can consist of only one officer, but usually has more. The Special Court Martial must have at least three members.
The General Court Martial, which handles the most serious offenses, must have at least five members, but again often will have more.
Courts martial also will have recorders and security and other support personnel similar to a civilian court. And most will be held in a facility that looks much like a civilian court room.
Although trials have not been set for either Hasan or for Army Staff Sgt. Robert Bales, accused of murdering 17 Afghan civilians, they will be tried before General Courts Martial, for it is the only level that can handle charges that could bring the death penalty.
Courts martial will go through preliminary processes carefully prescribed by the Manual for Courts Martial, but which are similar to a civil criminal trial.
The officer in charge of the Article 32 investigation will refer the findings to the convening authority, who will decide, with advice from his or her staff JAG, whether charges should be preferred, and, if so, what charges will be and the level of the court.
Charges and specifications – amplifying information — will be drafted and presented to the accused’s defense counsel, who can argue for removal or modification. Defense will be given ample opportunity to review and possibly contest the trial counsel’s proposed evidence.
A jury pool will be selected and subjected to challenges for cause by both the trail and defense counsel. The judge will rule on the validity of the challenges. Each counsel also has the right to one peremptory challenge to remove a potential Court member.
Once the Court is seated and sworn, the trial will proceed much as in a civilian court, with presentation of charges, evidence and witnesses by the trial counsel, subject to challenges and cross examination by defense counsel, and re-direct from the prosecution. The defense will then present its case with evidence and witnesses, subject to challenges and cross examination.
Trial counsel can present rebuttal evidence if necessary.
Rules on introduction of evidence and counsel’s questions are quite similar to federal criminal courts, and the judge rules on objections and motions.
Counsels will make closing arguments and the judge will instruct the Court on the matters of law it must consider, which will have been discussed with opposing counsels.
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