1. The U.S. Oral Courts-Martial System

2. General Principles of U.S. Military Justice
Military personnel are given responsibilities and trust beyond the norm. Good order and discipline is vital to maintain efficiency.
Criminal behavior undermines unit cohesion, lowers effectiveness, degrades unit morale
As Citizens, servicemembers always retain their right to a fair oral trial
Civilian oversight of military courts

3. Legal Structure of the U.S. Court-Martial System - STATUTORY
U.S. Constitution
Congress has responsibility to regulate the Armed Forces
Uniform Code of Military Justice (UCMJ)
Congressionally Enacted
Comprehensive Code
Disciplinary and Criminal Behavior

4. Legal Structure of the U.S. Courts-Martial System - REGULATORY
President is Commander-in-Chief
President makes rules and regulations for Courts-Martial (Executive Orders)
Rules for Court-Martial (RCM)
Military Rules of Evidence (MRE)
Closely match Federal rules of evidence
Manual for Courts-Martial (MCM)
President establishes the maximum punishment for each offense

5. The Convening Authority
Commanders with authority to ‘convene’ a Court-Martial are referred to as a Convening Authority (CA)
The CA decides what to do in each case
dismissing the allegations;
forwarding to superior commander;
imposing non-punitive measures;
imposing nonjudicial punishment;
convening a court-martial.

6. Unlawful Command Influence PROHIBITED. . .
Members of the Command may not:
Attempt to control courts-martial
Attempt to influence testimony
Assign biased members
Punish court members for their judicial actions
Intimidate or interfere with the military judge or defense counsel

7. PREVENTING UNLAWFUL COMMAND INFLUENCE
Judge, Prosecutor, Defense are not in same chain of command
Superior Commander may intervene
Training in Military Justice
Remedies
Cases can be dismissed
Commander can be punished
Acts of undue influence are subject to disciplinary measures

8. Jurisdiction Personal: Worldwide application
Subject matter: Disciplinary infractions, military-specific offenses, typical criminal offenses.
Concurrent jurisdiction
with civilian courts
State
Foreign

9. Types of Court-Martial
Summary Court-Martial (Prompt Adjudication of Minor Offenses)
Special Court-Martial (Full Oral Trial)
Military judge
Trial counsel
Defense counsel
Minimum of three members
1 year maximum confinement
General Court-Martial (Full Oral Trial)
Same participants
Minimum of five members
May impose maximum punishment authorized
for an offense

10. Court-Martial Due Process
Accused is entitled to free legal
representation by a military lawyer
(except Summary Court-Martial)
Government must bring case to trial within 120 days of formal charges or pre-trial confinement
Pre-trial confinement is permitted if justified by certain evidence
Decision to impose such confinement is automatically reviewed

11. The Path to a Court-Martial
Allegation and Investigation
Convening Authority Review
Official charging - ‘Preferral’
Forwarding of charges to court - ‘Referral’
Convening the Court
Additional steps to send charges to a General Court-Martial
Oral Trial
Sentencing
Appellate Process

12. The Path to a Court-Martial
Allegation and Investigation
Every allegation must be investigated at the appropriate level:
Preliminary Inquiry – Done within the command
Criminal Investigation – Done by professionals

13. The Path to a Court-Martial
Convening Authority Review
Convening Authority seeks advice of his military lawyer or;
Convening Authority decides to forward case to higher commander;

14. The Path to a Court-Martial
Official charging - ‘Preferral’
Convening authority officially requests legal services
Servicemember with personal or investigative knowledge of case swears that charges are warranted
Servicemember is notified
Charges are sent to unit for Convening Authority Decision

15. The Path to a Court-Martial
Forwarding of charges to court - ‘Referral’
Convening authority reviews preferred charges and decides to send them to a Special Court- Martial….or,
Convening authority sends case to an Article 32 investigation, after which they can ‘refer’ charges to a General Court-Martial

16. The Path to a Court-Martial
Oral Trial
The keystone of an accusatorial system
All evidence evaluated ‘live’ before a fact-finder
Trial Advocacy skills crucial for proper presentation of case
Procedures of trial have due process built-in

17. The Path to a Court-Martial
Sentencing
ALWAYS an adversarial proceeding
Judge or Jury consider aggravating, mitigating, and extenuating evidence
Decide on punishment even in case of a guilty plea and/or plea bargain

18. The Path to a Court-Martial
Appellate Process
Initial review by convening authority
Each branch has a court of appeals - Automatic appeal in any case where punishment includes 90 days of confinement or Bad Conduct Discharge
Appellate defense counsel assigned for each accused
The Court of Appeals for the Armed Forces (CAAF) can review any decision of the lower courts
Final review authority rests with the U.S. Supreme Court if they grant review

19. U.S. Oral Court Martial System
Accountable to Civilian Authority
Same accusatorial model as Civilian courts
Due Process is incoporated into procedure by law and legal precedent
Rights of appeal included