Two competing options: (1) Military tribunals / commissions Most recently, created by Executive Order in Nov 2001 Secretary of Defense ordered to establish procedures for the tribunals (2) Federal (civilian) criminal courts Already in existence Used to hold trials for violations Federal crimes

Three to seven members on each tribunal All appointed by Secretary of Defense or his committee All commission members officers in the U.S. armed forces Presiding officer for each commission must be a military lawyer Presiding officer has authority to admit / exclude evidence Trial may be conducted in closed session if necessary to protect classified information or to assure the safety of defendants, witnesses, or commission members.

Defendant receives many, but not all, due process protections guaranteed to a defendant in a Federal civilian criminal court. The tribunal procedures guarantee the following due process protections: Defense counsel of his or her own choosing, military or civilian attorney Presumed innocent until proven guilty Prosecution must prove its case beyond a reasonable doubt Accused may refuse to testify during trial The right to obtain witnesses and documents necessary for the defense No double jeopardy: A person accused may not be tried twice before a military commission for the same offense An accused will be allowed to negotiate and enter into a plea agreement.

Defendant convicted by a two-thirds majority - Unanimous verdicts are not required Evidence will be admissible if it tends to prove or disprove the case at hand The exclusionary rule, which keeps illegally seized evidence out of a civilian criminal trial, does not apply No appeal from a guilty verdict to civilian judges However, there are "reviews" of a verdict by a three- member panel selected by the Secretary of Defense. No verdict will be final until approved by the President or Secretary of Defense.

All due process rights apply to defendants under 4 th, 5 th, 6 th, and 8 th Amendments Trial by jury Evidence admissible if relevant and credible Exclusionary rule applies and may result in illegally obtained evidence being excluded from the trial

A fair trial encompasses more than the trial itself Seizing evidence in violation of the 4 th Amendment and admitting that evidence in court are considered parts of a single governmental action - illegality of first part contaminates the second Weeks v. U. S. (1914): Exclusionary rule applied to illegal searches by Federal officers Mapp v. Ohio (1961): Exclusionary rule applied to states

Deters illegal searches and seizures Forces police to develop procedures and training that prevent 4 th and 5 th Amendment violations No other alternative is available to the courts to prevent illegal searches and or seizure of evidence because they have no direct control over police procedure or behavior

Evidence that is otherwise credible and relevant may be excluded from a trial There is little empirical evidence that the exclusionary rule deters police illegality May causes considerable delay and waste of police and judicial resources May encourage perjury on the part of police to cover up technical violations