Military Justice: Courts-Martial, An Overview
R. Chuck Mason
Legislative Attorney
March 31, 2011
Congressional Research Service
7-5700
www.crs.gov
R41739
CRS Report for Congress
P
repared for Members and Committees of Congress

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Military Justice: Courts-Martial, An Overview

Summary
A string of recent high profile military-related cases, including Maj. Nidal Hasan, the alleged
shooter at Fort Hood, and Pfc. Bradley Manning, the alleged source of leaked classified materials
through the organization WikiLeaks, has resulted in increased public and congressional interest in
military discipline and the military justice system. In the criminal law system, some basic
objectives are to discover the truth, acquit the innocent without unnecessary delay or expense,
punish the guilty proportionately with their crimes, and prevent and deter further crime, thereby
providing for the public order. Military justice shares these objectives in part, but also serves to
enhance discipline throughout the Armed Forces, serving the overall objective of providing an
effective national defense.
Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support
armies; provide and maintain a navy; and provide for organizing and disciplining them. Under
this authority, Congress has enacted the Uniform Code of Military Justice (UCMJ), which is the
code of military criminal laws applicable to all U.S. military members worldwide. The President
implemented the UCMJ through the Manual for Courts-Martial (MCM). The Manual for Courts-
Martial contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and
the UCMJ. Members of the Armed Forces are subjected to rules, orders, proceedings, and
consequences different from the rights and obligations of their civilian counterparts, and the
UCMJ establishes this unique legal framework.
The UCMJ authorizes three types of courts-martial: (1) summary court-martial; (2) special court-
martial; and (3) general court-martial. Depending on the severity of the alleged offense, the
accused’s commanding officer enjoys great discretion with respect to the type of court-martial to
convene. Generally, each of the courts-martial provides fundamental constitutional and
procedural rights to the accused, including, but not limited to, the right to a personal
representative or counsel, the opportunity to confront evidence and witnesses, and the right to
have a decision reviewed by a lawyer or a court of appeals. The chart that concludes this report
compares selected procedural safeguards employed in criminal trials in federal criminal court
with parallel protective measures in military general courts-martial.

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Contents
Introduction ................................................................................................................................ 1
Military Courts-Martial ............................................................................................................... 1
Jurisdiction ........................................................................................................................... 2
Types of Offenses ................................................................................................................. 3
Investigation ......................................................................................................................... 3
Types of Courts-Martial ........................................................................................................ 4
Summary Courts-Martial................................................................................................. 5
Special Courts-Martial .................................................................................................... 5
General Courts-Martial ................................................................................................... 6
Post-Trial Review ................................................................................................................. 7
Appellate Review.................................................................................................................. 7
Selected Procedural Safeguards............................................................................................. 8

Tables
Table 1. Selected Procedural Safeguards in Federal and Military Courts ...................................... 8

Contacts
Author Contact Information ...................................................................................................... 15
Acknowledgments .................................................................................................................... 15

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Military Justice: Courts-Martial, An Overview

Introduction
A string of recent high profile military-related cases, including Maj. Nidal Hasan, the alleged
shooter at Fort Hood, and Pfc. Bradley Manning, the alleged source of leaked classified materials
through the organization WikiLeaks, has resulted in increased public and congressional interest in
military discipline and the military justice system.
The U.S. Constitution imposes on the government a system of restraints to provide that no unfair
law is enforced and that no law is enforced unfairly. What is fundamentally fair in a given
situation depends in part on the objectives of a given system of law weighed alongside the
possible infringement of individual liberties that the system might impose. In the criminal law
system, some basic objectives are to discover the truth, punish the guilty proportionately with
their crimes, acquit the innocent without unnecessary delay or expense, and prevent and deter
further crime, thereby providing for the public order. Military justice shares these objectives in
part, but also serves to enhance discipline throughout the Armed Forces, serving the overall
objective of providing an effective national defense.
The Fifth Amendment to the Constitution provides that “no person shall be ... deprived of life,
liberty, or property, without due process of law.” Due process includes the opportunity to be heard
whenever the government places any of these fundamental liberties at stake. The Constitution
contains other explicit rights applicable to various stages of a criminal prosecution. Criminal
proceedings provide both the opportunity to contest guilt and to challenge the government’s
conduct that may have violated the rights of the accused. The system of procedural rules used to
conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional
rights that take place outside the courtroom.
Military Courts-Martial
The Constitution, in order to provide for the common defense,1 gives Congress the power to raise,
support, and regulate the Armed Forces,2 but makes the President Commander-in-Chief of the
Armed Forces.3 Article III, which governs the federal judiciary, does not give it any explicit role
in the military, and the Supreme Court has taken the view that Congress’s power “To make Rules
for the Government and Regulation of the land and naval Forces”4 is entirely separate from
Article III.5 Therefore, courts-martial are not considered to be Article III courts and are not
subject to all of the rules that apply in federal courts.6

1 U.S. CONST. Preamble.
2 Id. art. I § 8, cls. 11-14 (War Power).
3 Id. art. II § 2, cl. 1.
4 Id. art. I § 8, cl. 14.
5 See Dynes v. Hoover, 61 U.S. (How.) 65 (1857).
6 See WILLIAM WINTHROP, WINTHROP’S MILITARY LAW AND PRECEDENTS 48-49 (2d. ed. 1920)(describing courts-
martial as instrumentalities of the executive power, provided by Congress for the President as Commander-in-chief, to
aid him in properly commanding the army and navy and enforcing discipline therein) (emphasis in original).
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Military Justice: Courts-Martial, An Overview

Members of the Armed Forces are subjected to rules, orders, proceedings, and consequences
different from the rights and obligations of their civilian counterparts.7 As such, it might be said
that discipline is as important as liberty interests in the military justice system. The Constitution
specifically exempts military members accused of a crime from the Fifth Amendment right to a
grand jury indictment,8 from which the Supreme Court has inferred there is no right to a civil jury
in courts-martial.9 However, in part because of the different standards provided in courts-martial,
their jurisdiction is limited to those persons and offenses the military has a legitimate interest in
regulating. Courts-martial jurisdiction extends mainly to servicemembers on active duty,
prisoners of war, and persons accompanying the Armed Forces in time of declared war,10 as well
as certain violators of the law of war.11
Under Article I, Section 8 of the U.S. Constitution, Congress has the power to raise and support
armies; provide and maintain a navy; and provide for organizing and disciplining them. Under
this authority, Congress has enacted the Uniform Code of Military Justice (UCMJ),12 which is the
code of military criminal laws applicable to all U.S. military members worldwide. The President
implemented the UCMJ through the Manual for Courts-Martial (MCM), which was initially
prescribed by Executive Order 12473 (April 13, 1984). The Manual for Courts-Martial contains
the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE),13 and the UCMJ.
The MCM covers almost all aspects of military law.14 Military courts are not considered Article
III courts but instead are established pursuant to Article I of the Constitution, and as a result are of
limited jurisdiction.15
Jurisdiction
The UCMJ gives courts-martial jurisdiction over servicemembers16 as well as several other
categories of individuals, including retired members of a regular component of the Armed Forces

7 United States v. Watson, 69 M.J. 415 (2011).
8 The Fifth Amendment provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; ....”
9 See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). Congress has, in article 32, UCMJ, provided for a pre-trial hearing
that performs the same basic function as a grand jury. Court-martial panels consist of a military judge and several panel
members, who function similarly to a jury.
10 See 10 U.S.C. § 802. “In time of war” refers to war declared by Congress. United States v. Averette, 17 USCMA 363
(1968).
11 See 10 U.S.C. § 818.
12 10 U.S.C. §§ 801-941.
13 Rules of procedures and rules of evidence for courts-martial are established by the President and authorized by Art.
36, UCMJ (10 U.S.C. § 836).
14 Each military service supplements the MCM to meet its individuals needs. The Army has Army Regulation 27-10;
the Navy and Marine Corps have the Manual for the Judge Advocate General; and the Air Force has Air Force
Instructions.
15 Article III of the U.S. Constitution, addressing the judicial powers of the United States, contains certain requirements
such as life tenure for judges and a prohibition against diminution of salaries. Article I of the U.S. Constitution,
addressing legislative powers of congress, includes the power to regulate the Armed Forces, and by implication, the
power to create legislative courts to enforce those regulations. In creating legislative courts, Congress is not limited by
the restrictions imposed in Article III. See United States v. Wuterich, 67 M.J. 32 (2007).
16 The term servicemembers, as used in this report, includes uniformed members of the U.S. Army, U.S. Marine Corps,
U.S. Navy, U.S. Air Force, and the U.S. Coast Guard.
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Military Justice: Courts-Martial, An Overview

entitled to pay; retired members of a reserve component who are hospitalized in a military
hospital; persons in custody of the military serving a sentence imposed by a court-martial;
members of the National Oceanic and Atmospheric Administration and Public Health Service and
other organizations, when assigned to serve with the military; enemy prisoners of war in custody
of the military; and persons with or accompanying the military in the field during “times of war,”
limited to declared wars.17 Jurisdiction of a court-martial does not depend on where the offense
was committed; it depends solely on the status of the accused.18
Types of Offenses
Courts-martial try “military offenses,” which are listed in the punitive articles of the UCMJ and
are codified in 10 U.S.C. 877 et seq.19 Some “military offenses” have a civilian analog, but some
are exclusive to the military.20 The President is authorized to prescribe the punishments which a
court-martial may impose within the limits established by Congress.21 In addition, a
servicemember may be tried at a court-martial for offenses not specifically covered through the
use of the General Article – UCMJ Article 134,22 which states that all “crimes and offenses not
capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a
general, special, or summary court martial, according to the nature and degree of the offense.”
The Armed Forces have used Art. 134 to assimilate state and federal offenses for which there is
no analogous crime in the UCMJ in order to impose court-martial jurisdiction. The potential
punishments for violations generally match those applicable to the corresponding civilian offense.
Investigation
When a servicemember has reportedly committed an offense, the accused’s immediate
commander will conduct an inquiry.23 This inquiry may range from an examination of the charges
and an investigative report or summary of expected evidence to a more extensive investigation,
depending on the offense(s) alleged and the complexity of the case. The investigation may be
conducted by members of the command or, in more complex cases, military and civilian law
enforcement officials. Once evidence has been gathered and the inquiry is complete, the
commander can choose to dispose of the charges by (1) taking no action, (2) initiating
administrative action,24 (3) imposing non-judicial punishment, (4) preferring charges, or (5)
forwarding to a higher authority for preferral of charges.25 The first formal step in a court-martial,
preferral of charges, consists of drafting a charge sheet containing the charges and specifications26

17 Art. 2, UCMJ; 10 U.S.C. § 802.
18 See Solorio v. United States, 483 U.S. 435, 447 (1987).
19 The punitive articles run from Arts. 77 through 134 of the UCMJ; 10 U.S.C. §§ 877-934.
20 Military-specific offenses include mutiny or sedition (Art. 94, UCMJ); insubordinate contact (Art. 91, UCMJ);
failure to obey an order (Art. 92, UCMJ); cruelty and maltreatment (Art. 93, UCMJ); and misconduct as a prisoner
(Art. 105, UCMJ).
21 Art. 56, UCMJ; 10 U.S.C. § 856.
22 10 U.S.C. § 934.
23 RCM 303.
24 Administrative action can include separation from the military. See 10 U.S.C. §§ 1161 et seq.
25 RCM 306(c).
26 A specification is a plain and concise statement of the essential facts constituting the offense charged. RCM
307(c)(3).
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against the accused. The charge sheet must be signed by the accuser27 under oath before a
commissioned officer authorized to administer oaths.28 Once charges have been preferred they
may be referred29 to one of three types of courts-martial: summary, special, or general.30 The
seriousness of the offenses alleged generally determines the type of court-martial. The court-
martial must be convened by an officer with sufficient legal authority, that is, the “convening
authority,”31 who will generally be the commander of the unit to which the accused is assigned.32
Types of Courts-Martial
The federal judiciary is established by Article III of the Constitution and consists of the Supreme
Court and “inferior tribunals” established by Congress. It is a separate and co-equal branch of the
federal government, independent of the executive and legislative branches, designed to be
insulated from the public passions. Its function is not to make law but to interpret law and decide
disputes arising under it. Federal criminal law and procedures are enacted by Congress and
housed primarily in Title 18 of the U.S. Code. The Supreme Court promulgates procedural rules
for criminal trials at the federal district courts, subject to Congress’s approval. These rules,
namely the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) and the Federal Rules of
Evidence (Fed. R. Evid.), incorporate procedural rights that the Constitution and various statutes
demand.
Unlike with the federal courts, the Supreme Court does not promulgate procedural rules for
military courts-martial. As discussed above, Congress regulates the Armed Forces largely through
Title 10 of the U.S. Code. The military courts-martial system is specifically addressed in the
Uniform Code of Military Justice (UCMJ), Chapter 47 of Title 10.33 Article 36 of the UCMJ
authorizes the President to prescribe rules for “pretrial, trial, and post-trial procedures, including
modes of proof, for cases arising under this chapter triable in courts-martial.” Such rules are to
“apply the principles of law and the rules of evidence generally recognized in the trial of criminal
cases in the United States district courts” insofar as the President “considers practicable” but that
“may not be contrary to or inconsistent” with the UCMJ.34 Pursuant to that delegation, the
President created the Rules for Courts-Martial (R.C.M.) and the Military Rules of Evidence (Mil.
R. Evid.).35
Congress, in creating the military justice system, established three types of courts-martial: (1)
summary court-martial, (2) special court-martial, and (3) general court-martial.36 While the
promulgated RCM and the Military Rules of Evidence are applicable to all courts-martial, the
jurisdiction and authorized punishments vary among the different courts-martial types. The

27 Any person subject to the UCMJ may prefer charges as the accuser. RCM 307(a).
28 RCM 307(b).
29 Referral is the order that states that charges against an accused will be tried by a specific court-martial.
30 See RCM 401(c).
31 RCM 504.
32 RCM 103(6).
33 10 U.S.C. §§ 801 et seq.
34 10 U.S.C. § 836.
35 The rules are set forth in the Manual for Courts-Martial (M.C.M.), established as Exec. Order No. 12473, Manual for
Courts-Martial, United States, 49 Fed. Reg 17,152, (Apr. 23, 1984), as amended.
36 Art. 16, UCMJ; 10 U.S.C. § 816.
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function of the summary court-martial is to “promptly adjudicate minor offenses under a simple
procedure” and “thoroughly and impartially inquire into both sides of the matter” ensuring that
the “interests of both the Government and the accused are safeguarded and that justice is done.”37
However, special and general courts-martial function to adjudicate more serious offenses with
more severe punishments and thus the procedures are more complex.
Although a discussion of the RCM and Mil. R. Evid. is beyond the scope of this report, the
procedures employed in courts-martial are intended to afford servicemembers basic constitutional
rights. Appended as Table 1 is an excerpt from CRS Report RL31262, Selected Procedural
Safeguards in Federal, Military, and International Courts, which compares selected
constitutionally based trial procedures in federal courts and general courts-martial.38
Summary Courts-Martial
The summary court-martial can adjudicate minor offenses allegedly committed by enlisted
servicemembers. It can adjudge maximum punishments of 30 days’ confinement; hard labor
without confinement for 45 days; restriction to specified limits for 45 days; forfeiture of two-
thirds’ pay per month for one month; and reduction to the lowest pay grade. In the case of enlisted
members above pay grade E-4,39 the summary court-martial may not adjudge confinement or hard
labor without confinement and can only reduce them to the next lower pay grade.40 Summary
courts-martial are composed of one commissioned officer who need not be a lawyer.41 The
accused must consent to the proceedings42 and normally is not entitled to a lawyer.43 If an accused
refuses to consent to a trial by summary court-martial, a trial may be ordered by special or general
court-martial as may be appropriate, at the discretion of the convening authority.44
Special Courts-Martial
The special court-martial can try any servicemember for any noncapital offense or, under
presidential regulation, capital offenses.45 Special courts-martial generally try offenses that are
considered misdemeanors. A special court-martial can be composed of a military judge alone, not
less than three members,46 or a military judge and not less than three members.47 Contrary to

37 RCM 1301(b).
38 CRS Report RL31262, Selected Procedural Safeguards in Federal, Military, and International Courts, by Jennifer
K. Elsea
39 Pay grade E-4 consists of corporals or specialists (Army), petty officers 3rd class (Navy), corporals (Marines), and
senior airman (Air Force).
40 RCM 1301; Art 20, UCMJ; 10 U.S.C. § 820.
41 Art. 16, UCMJ; 10 U.S.C. § 816.
42 Art. 20, UCMJ; 10 U.S.C. § 820.
43 Middendorf v. Henry, 425 U.S. 25 (1970).
44 Art. 20, UCMJ; 10 U.S.C. § 820.
45 Arts. 16 & 19, UCMJ; 10 U.S.C. §§ 816, 819; RCM 201(f)(2)(A) (Capital offenses, as defined by RCM 103(3), for
which there is not a mandated punishment in excess of the punitive power of a special court-martial may be referred
and tried by a special court-martial. RCM 201(f)(2)(C)).
46 Members in the military justice system are the equivalent of jurors and are generally composed of officers from the
accused’s command.
47 The accused has the right to choose the composition of the court-martial or whether to be tried by a military judge
alone, a military judge and members, or a panel of members. Enlisted servicemembers may request that the members’
(continued...)
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civilian criminal trials, the agreement of only two-thirds of the members of a court-martial is
needed to find the accused guilty. Otherwise, the accused is acquitted.48 There are no “hung
juries” in courts-martial. Regardless of the offenses tried, the maximum punishment allowed at a
special court-martial is confinement for one year; hard labor without confinement for up to three
months; forfeiture of two-thirds’ pay per month for up to one year; reduction in pay grade; and a
bad-conduct discharge.49 The accused is entitled to an appointed military attorney, a military
counsel of his or her selection, or he or she can hire a civilian counsel at no expense to the
government.50
General Courts-Martial
A general court-martial is the highest trial level in military law and is usually used for the most
serious offenses. It is composed of a military judge sitting alone, or not less than five members
and a military judge.51 It can adjudge, within the limits prescribed for each offense, a wide range
of punishments to include confinement; reprimand; forfeitures of up to all pay and allowances;
reduction to the lowest enlisted pay grade; punitive discharge (bad conduct discharge,
dishonorable discharge, or dismissal); restriction; fines; and, for certain offenses, death.52 The
accused is entitled to an appointed military attorney or a military counsel of his or her selection,
or the accused can hire civilian counsel at no expense to the government.
Prior to convening a general court-martial, a pretrial investigation must be conducted. This
investigation, known as an Article 32 hearing, is meant to ensure that there is a basis for
prosecution.53 An investigating officer, who must be a commissioned officer,54 presides, and the
accused has the same entitlements to counsel as in special courts-martial. However, unlike in a
civilian grand jury investigation, where the accused has no access to the proceedings, the accused
is afforded the opportunity to examine the evidence presented against him, cross-examine
witnesses, and present his own arguments.55 If the investigation uncovers evidence that the
accused has committed an offense not charged, the investigating officer can recommend that new

(...continued)
panel include enlisted members. RCM 903.
48 RCM 921(c). The same is applicable to general courts-martial with the exception of offenses where the death penalty
is mandatory, which require a unanimous verdict. Art. 52, UCMJ; 10 U.S.C. § 852.
49 Art. 19, UCMJ; 10 U.S.C. § 819; RCM 201(f)(2)(B). A bad-conduct discharge, confinement for more than six
months, or forfeiture of pay for more than six months, may only be adjudged if a complete record of the proceedings
and testimony has been made, defense counsel was appointed, and a military judge presided over the court-martial. If a
military judge could not be appointed, a detailed written statement stating the reasons why must be submitted by the
commander who convened the court-martial.
50 Art. 27, UCMJ; 10 U.S.C. § 827. See generally United States v. Hutchins, 69 M.J. 282 (2010).
51 Art. 16, UCMJ. The Accused has the right to choose the composition of the court-martial except in capital cases,
where members are required. See footnote 47, supra. And RCM 201(f)(1)(C).
52 Art. 18, UCMJ; 10 U.S.C. § 818; RCM 1003. (A penalty of death may only be adjudged with the concurrence of all
members of the court-martial; the case was referred to the court-martial as a capital case; and one or more specified
aggravating factors were present at the time of the offense. RCM 1004).
53 Art. 32, UCMJ; 10 U.S.C. § 832.
54 RCM 405(d)(1) (An commissioned officer is a member of the uniformed services not in an enlisted pay grade and
includes a commissioned warrant officer (10 U.S.C. § 101). The investigating officer should be an officer in the grade
of major or lieutenant commander or higher or one with legal training).
55 Art. 32(b)-(c), UCMJ; 10 U.S.C. § 832(b)-(c); RCM 405(f). See United States v. Davis, 64 M.J. 445 (2007).
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charges be added.56 Likewise, if the investigating officer believes that evidence is insufficient to
support a charge, he can recommend that it be dismissed. Once the Article 32 investigation is
complete, the investigating officer makes recommendations to the convening authority (CA) via
the CA’s legal advisor. The legal advisor, in turn, provides the CA with a formal written
recommendation, known as the Article 34, UCMJ advice, as to the disposition of the charges. The
CA then determines whether to convene a court-martial or dismiss the charges.57
Post-Trial Review
Convictions at a general or special court-martial that include a punitive (bad conduct or
dishonorable) discharge are subject to an automatic post-trial review by the CA. The process
starts with a review of the trial record by the staff judge advocate (SJA), who makes a
recommendation to the CA as to what action to take. This review is recognized as the accused’s
best hope for relief, as the CA has broad powers to act on the case.58 Upon review of the record of
trial and the SJA’s recommendation, the CA may, among other remedies, suspend all or part of the
sentence, disapprove a finding or conviction, or lower the sentence.59 The CA may not increase
the sentence. Once the CA takes action on the case, the conviction is ripe for an appeal.
All court-martial convictions not reviewable by the service appellate courts60 are reviewed by a
judge advocate to determine if the findings and sentence, as approved by the CA, are correct in
law and fact.61 If those criteria are met, the conviction is final. If not, the judge advocate forwards
the case to the officer exercising general court-martial CA over the accused at the time the court-
martial was convened for corrective action.62 If the CA refuses to take corrective action, the case
is referred to the Judge Advocate General for review.
Appellate Review
Convictions by a special or general court-martial are subject to an automatic63 appeal to a service
Court of Criminal Appeals if the sentence includes confinement for one year or more, a bad-
conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer,
cadet, or midshipman.64 Appeal is mandatory when the sentence includes death. If the conviction
is affirmed by the service court, the appellant may request review by the Court of Appeals for the

56 Art. 32(d), UCMJ; 10 U.S.C. § 823(d); RCM 407.
57 Arts. 33-35, UCMJ; 10 U.S.C. § 833-835; RCM 407.
58 United States v. Davis, 58 M.J. 100, 102 (2003).
59 Art. 60, UCMJ; 10 U.S.C. § 860; RCM 1107.
60 There are three service appellate courts: the Navy-Marine Corps Court of Criminal Appeals, the Army Court of
Criminal Appeals, and the Air Force Court of Criminal Appeals. A service appellate court will have jurisdiction in
cases where the sentence includes confinement for one year or more, a bad-conduct or dishonorable discharge, death, or
a dismissal from service in the case of a commissioned officer, cadet, or midshipman. Art. 66, UCMJ; 10 U.S.C. § 866.
61 Art. 64, UCMJ, 10 U.S.C. § 864, RCM 1111, 1112, and 1306.
62 Art. 64(c)(3), UCMJ; 10 U.S.C. § 864(c)(3); RCM 1112.
63 Military appellate courts are required to review cases over which they have jurisdiction unless the appellant waives
his or her right to appeal. An appellant may not waive his right to appeal when the sentence includes death. RCM 1110.
64 Art. 66, UCMJ; 10 U.S.C. § 866.
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Armed Forces (CAAF)65 and ultimately the U.S. Supreme Court.66 Review by these courts is
discretionary.
Supreme Court review by writ of certiorari is limited to cases where the CAAF has conducted a
review, whether mandatory or discretionary, or has granted a petition for extraordinary relief. The
Court does not have jurisdiction to review a denial of discretionary review by the CAAF,67 nor
does it have jurisdiction to consider denials of petitions for extraordinary relief.68 Service-
members whose petitions for review or for extraordinary relief are denied by the CAAF may seek
additional review only through collateral means, for example, petitioning for habeas corpus to an
Article III court, which could provide an alternate avenue for Supreme Court review.
Selected Procedural Safeguards
The following chart cites relevant federal rules and/or court decisions, as well as provisions of the
UCMJ and applicable rules, but makes no effort to provide an exhaustive list of all procedural
authorities.69
Table 1. Selected Procedural Safeguards in Federal and Military Courts
Constitutional
Safeguards
Federal Court
General Courts-Martial
Presumption of
If the defendant fails to enter a proper
If the defendant fails to enter a proper
Innocence
plea, a plea of not guilty will be entered.
plea, a plea of not guilty will be entered.
Fed. R. Crim. P. 11(a).
R.C.M. 910(b).
“The principle that there is
a presumption of
Defendant is entitled to jury instructions
Members of court martial must be
innocence in favor of the
explaining that guilt must be proved on
instructed that the “accused must be
accused is the undoubted
the evidence beyond a reasonable doubt.
presumed to be innocent until the
law, axiomatic and
Taylor v. Kentucky, 436 U.S. 478 (1978).
accused’s guilt is established by legal and
elementary, and its
competent evidence beyond a reasonable
enforcement lies at the
Defendant is entitled to appear in court
doubt.”
foundation of the
without unnecessary physical restraints or
administration of our
other indicia of guilt, such as appearing in
R.C.M. 920(e).
criminal law.”
prison uniform, that may be prejudicial to
jury.
The accused shall be properly attired in
Coffin v. United States,
uniform with grade insignia and any
156 U.S. 432, 453 (1895).
See Holbrook v. Flynn, 475 U.S. 560
decorations to which entitled. Physical
(1986).
restraint shal not be imposed unless
prescribed by the military judge.
R.C.M. 804.

65 See Art. 67, UCMJ; 10 U.S.C. § 867. The Court of Appeals for the Armed Forces (CAAF) is a civilian court
composed of five civilian judges appointed by the President.
66 The U.S. Supreme Court did not have jurisdiction over decisions of the CAAF until Congress granted it in 1984.
Military Justice Act of 1983, P.L. 98-209, 97 Stat. 1393, 28 U.S.C. § 1259.
67 10 U.S.C. § 867a.
68 For an additional discussion on Supreme Court jurisdiction over military justice cases, please see CRS Report
RL34697, Supreme Court Appellate Jurisdiction Over Military Court Cases, by R. Chuck Mason.
69 “Table 1. Selected Procedural Safeguards in Federal and Military Courts” is excerpted from CRS Report RL31262,
Selected Procedural Safeguards in Federal, Military, and International Courts, by Jennifer K. Elsea.
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Military Justice: Courts-Martial, An Overview

Constitutional
Safeguards
Federal Court
General Courts-Martial
Right to Remain Silent
Incriminating statements made by
Coerced confessions or confessions made
defendant under duress or without prior
without statutory equivalent of Miranda
“No person ... shall be
Miranda warning are inadmissible as
warning are not admissible as evidence.
compelled in any criminal
evidence of guilt in a criminal trial.
Art. 31, UCMJ, 10 U.S.C. § 831.
case to be a witness
Miranda v. Arizona, 384 U.S. 436 (1966).
against himself ....”
The prosecutor must notify the defense
Before a jury is allowed to hear evidence
of any incriminating statements made by
Amendment V.
of a defendant’s confession, the court
the accused that are relevant to the case
must determine that it was voluntarily
prior to the arraignment. Motions to
given.
suppress such statements must be made
prior to pleading.
18 U.S.C. § 3501.
Mil. R. Evid. 304.
Freedom from
Evidence, including derivative evidence,
“Evidence obtained as a result of an
Unreasonable Searches gained through unreasonable searches and unlawful search or seizure ... is
& Seizures
seizures may be excluded in court. Boyd
inadmissible against the accused ...” unless
v. United States, 116 U.S. 616 (1886);
certain exceptions apply.
“The right of the people to Nardone v. United States, 308 U.S. 338
be secure ... against
(1938); Fed. R. Crim. P. 41.
Mil. R. Evid. 311.
unreasonable searches and
seizures, shall not be
A search warrant issued by a magistrate
“Authorization to search” may be oral or
violated; no Warrants shal on a showing of probable cause is
written, and may be issued by a military
issue, but upon probable
generally required for law enforcement
judge or an officer in command of the
cause...”
agents to conduct a search of an area
area to be searched, or if the area is not
where the subject has a reasonable
under military control, with authority
Amendment IV.
expectation of privacy, including searches
over persons subject to military law or
and seizures of telephone or other
the law of war. It must be based on
communications and emissions of heat
probable cause.
and other phenomena detectable with
Mil. R. Evid. 315.
means other than human senses. Katz v.
United States, 389 U.S. 347 (1967).
Interception of wire and oral
communications within the United States
Evidence resulting from overseas searches requires judicial application in accordance
of American property by foreign officials
with 18 U.S.C. §§ 2516 et seq.
is admissible unless foreign police conduct
shocks judicial conscience or participation Mil. R. Evid. 317.
by U.S. agents is so substantial as to
A search conducted by foreign officials is
render the action that of the United
unlawful only if the accused is subject to
States. United States v. Barona, 56 F.3d
“gross and brutal treatment.”
1087 (9th Cir. 1995).
Mil. R. Evid. 311(c).
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Military Justice: Courts-Martial, An Overview

Constitutional
Safeguards
Federal Court
General Courts-Martial
Assistance of Effective
Defendants in criminal cases have the
The defendant has a right to military
Counsel
right to representation by an attorney at
counsel at government expense. The
al stages of prosecution. The defendant
defendant may choose counsel, if that
“In all criminal
may hire an attorney or, if indigent, have
attorney is reasonably available, and may
prosecutions, the accused
counsel appointed at the government’s
hire a civilian attorney in addition to
shall enjoy the right ... to
expense. If two or more co-defendants
military counsel.
have the Assistance of
are represented by one attorney, the
Counsel for his defense.”
court must inquire as to whether a
Art 38, UCMJ, 10 U.S.C. § 838.
Amendment VI.
conflict of interest exists.
Appointed counsel must be certified as
Fed. R. Crim. P. 44.
qualified and may not be someone who
has taken any part in the investigation or
Conversations between attorneys and
prosecution, unless explicitly requested
clients are privileged. Fed. R. Evid. 501.
by the defendant.
Procedures for ensuring adequate
Art. 27, UCMJ, 10 U.S.C. § 827.
representation of defendants are outlined
at 18 U.S.C. §§ 3005 (capital cases) and
The attorney-client privilege is honored.
3006A.
Mil. R. Evid. 502.
Right to Indictment
Where the accused is in danger of being
The right to indictment by grand jury is
and Presentment
subjected to an infamous punishment if
explicitly excluded in “cases arising in the
convicted, he has the right to insist that
land or naval forces.”
“No person shal be held
he shal not be tried except on the
to answer for a capital, or
accusation of a grand jury. Ex parte
Amendment V.
otherwise infamous crime,
Wilson, 114 U.S. 417 (1885); Fed. R.
unless on a presentment
Whenever an offense is alleged, the
Crim. P. 7.
or indictment of a Grand
commander is responsible for initiating a
Jury, except in cases arising Jurors must be selected from a fair cross
preliminary inquiry and deciding how to
in the land or naval forces,
section of the community; otherwise, an
dispose of the offense. R.C.M. 303-06.
or in the Militia, when in
accused can chal enge the indictment. 28
actual service in time of
U.S.C. §§ 1861 et seq.
War or public danger ....”
Once an indictment is given, its scope
Amendment V.
may not be increased.
Ex parte Bain, 121 U.S. 1 (1887).
(Amendments to an indictment must
undergo further grand jury process.)
Right to Written
Defendant is entitled to be informed of
Charges and specifications must be signed
Statement of Charges
the nature of the charge with sufficiently
under oath and made known to the
reasonable certainty to allow for
accused as soon as practicable. Art. 30,
“In all criminal
preparation of defense.
UCMJ, 10 U.S.C. § 830.
prosecutions, the accused
shall enjoy the right ... to
Cook v. United States, 138 U.S. 157
be informed of the nature
(1891).
and cause of the
accusation; ...”
Amendment VI.
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Military Justice: Courts-Martial, An Overview

Constitutional
Safeguards
Federal Court
General Courts-Martial
Right to be Present at
The language, history, and logic of Rule 43 The presence of the accused is required
Trial
support a straightforward interpretation
during arraignment, at the plea, and at
that prohibits the trial in absentia of a
every stage of the court-martial unless the
The Confrontation Clause
defendant who is not present at the
accused waives the right by voluntarily
of Amendment VI
beginning of trial. Crosby v. United States, absenting him or herself from the
guarantees the accused’s
506 U.S. 255, 262 (1993); Fed. R. Crim. P.
proceedings after the arraignment or by
right to be present in the
43.
persisting in conduct that justifies the trial
courtroom at every stage
judge in ordering the removal of the
of his trial.
When defendant knowingly absents
accused from the proceedings.
himself from court during trial, court may
Illinois v. Allen, 397 U.S.
“proceed with trial in like manner and
R.C.M. 801.
337 (1970).
with like effect as if he were present.”
Diaz v. United States, 223 U.S. 442, 455
(1912).
Prohibition against Ex
Congress may not pass a law punishing
Courts-martial will not enforce an ex
Post Facto Crimes
conduct that was not a crime when
post facto law, including increasing
perpetrated, increasing the possible
amount of pay to be forfeited for specific
“No ... ex post facto law
sentence for a crime, or reducing the
crimes.
shal be passed.”
government’s evidentiary burden. Calder
U.S. v. Gorki, 47 M.J. 370 (1997).
Art. I, § 9, cl. 3.
v. Bull, 3 Dall. (3 U.S.) 386 (1798); Ex
Parte Garland, 4 Wal (71 U.S.) 1867.
Protection against
Jeopardy attaches once the jury is sworn
Double jeopardy clause applies. See Wade
Double Jeopardy
or where there is no jury, when the first
v. Hunter, 336 US 684, 688-89 (1949).
evidence is presented. If the trial is
“... nor shall any person be
terminated after jeopardy has attached, a
Art. 44, UCMJ prohibits double jeopardy,
subject for the same
second trial may be barred in a court
provides for jeopardy to attach after
offence to be twice put in
under the same sovereign, particularly
introduction of evidence.
jeopardy of life or limb; ...”
where it is prosecutorial conduct that
10 U.S.C. § 844.
Amendment V.
brings about the termination of the trial.
General court-martial proceeding is
Subject to “dual sovereign” Illinois v. Somerville, 410 U.S. 458 (1973).
considered to be a federal trial for double
doctrine, that is, federal
jeopardy purposes. Double jeopardy does
and state courts may
not result from charges brought in state
prosecute an individual for
or foreign courts, although court-martial
the same conduct without
in such cases is disfavored. United States
violating the clause.
v. Stokes, 12 M.J. 229 (C.M.A. 1982).
Once military authorities have turned
service member over to civil authorities
for trial, military may have waived
jurisdiction for that crime, although it may
be possible to charge the individual for
another crime arising from the same
conduct. See 54 AM. JUR. 2D, Military and
Civil Defense §§ 227-28.
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Military Justice: Courts-Martial, An Overview

Constitutional
Safeguards
Federal Court
General Courts-Martial
Speedy & Public Trial
Trial is to commence within seventy days
In general, accused must be brought to
of indictment or original appearance
trial within 120 days of the preferral of
“In all criminal
before court.
charges or the imposition of restraint,
prosecutions, the accused
whichever date is earliest.
shal enjoy the right to a
18 U.S.C. § 3161.
speedy and public trial, ....”
R.C.M. 707(a).
Closure of the courtroom during trial
Amendment VI.
proceedings is justified only if 1) the
The right to a public trial applies in
proponent of closure advances an
courts-martial but is not absolute.
overriding interest likely to be prejudiced;
2) the closure is no broader than
R.C.M. 806.
necessary; 3) the trial court considers
The military trial judge may exclude the
reasonable alternatives to closure; and 4)
public from portions of a proceeding for
the trial court makes findings adequate to
the purpose of protecting classified
support closure. See Wal er v. Georgia,
information if the prosecution
467 U.S. 39, 48 (1984).
demonstrates an overriding need to do so
and the closure is no broader than
necessary.
United States v. Grunden, 2 M.J. 116
(CMA 1977).
Burden & Standard of
Defendant is entitled to jury instructions
Members of court martial must be
Proof
clarifying that the prosecution has the
instructed that the burden of proof to
burden of presenting evidence sufficient
establish guilt is upon the government and
Due Process requires the
to prove guilt beyond a reasonable doubt. that any reasonable doubt must be
prosecution to prove the
resolved in favor of the defendant. R.C.M.
defendant guilty of each
Cool v. United States, 409 U.S. 100
920(e).
element of a crime beyond
(1978).
a reasonable doubt.
In re Winship, 397 U.S. 358
(1970).
Privilege Against Self-
Defendant may not be compel ed to
No person subject to the UCMJ may
Incrimination
testify. Jury may not be instructed that
compel any person to answer
guilt may be inferred from the defendant’s incriminating questions. Art. 31(a) UCMJ,
“No person ... shall be
refusal to testify.
10 U.S.C. § 831(a).
compelled in any criminal
case to be a witness
Griffin v. California, 380 U.S. 609 (1965).
Defendant may not be compel ed to give
against himself...”
testimony that is immaterial or potentially
Witnesses may not be compelled to give
degrading. Art. 31(c), UCMJ, 10 U.S.C. §
Amendment V.
testimony that may be incriminating
831(c).
unless given immunity for that testimony.
No adverse inference is to be drawn from
18 U.S.C. § 6002.
a defendant’s refusal to answer any
questions or testify at court-martial.
Mil. R. Evid. 301(f).
Witnesses may not be compelled to give
testimony that may be incriminating
unless granted immunity for that
testimony by a general court-martial
convening authority, as authorized by the
Attorney General, if required.
18 U.S.C. § 6002; R.C.M. 704.
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Military Justice: Courts-Martial, An Overview

Constitutional
Safeguards
Federal Court
General Courts-Martial
Right to Examine or
Rules of Evidence prohibit generally the
Hearsay rules apply as in federal court.
Have Examined
introduction at trial of statements made
Mil. R. Evid. 801 et seq.
Adverse Witnesses
out of court to prove the truth of the
matter stated unless the declarant is
In capital cases, sworn depositions may
“In all criminal
available for cross-examination at trial
not be used in lieu of witness, unless
prosecutions, the accused
(hearsay rule). Fed. R. Evid. 801 et seq.
court-martial is treated as non-capital or
shall enjoy the right ... to
it is introduced by the defense. Art. 49,
be confronted with the
The government is required to disclose to UCMJ, 10 U.S.C. § 849.
witnesses against him; ....”
defendant any relevant evidence in its
possession or that may become known
Amendment VI.
through due diligence.
Fed. R. Crim. P. 16.
Right to Compulsory
Defendants have the right to subpoena
Defendants before court-martial have the
Process to Obtain
witnesses to testify in their defense. The
right to compel appearance of witnesses
Witnesses
court may punish witnesses who fail to
necessary to their defense. R.C.M. 703.
appear. Fed. R. Crim. Pro. Rule 17.
“In all criminal
Process to compel witnesses in court-
prosecutions, the accused
martial cases is to be similar to the
shall enjoy the right ... to
process used in federal courts. Art. 46,
have compulsory process
UCMJ, 10 U.S.C. § 846.
for obtaining witnesses in
his favor, ....”
Amendment VI.
Right to Trial by
The independence of the judiciary from
A qualified military judge is detailed to
Impartial Judge
the other branches was established to
preside over the court-martial. The
ensure trials are decided impartially,
convening authority may not prepare or
“The Judicial Power of the
without the “potential domination by
review any report concerning the
United States, shall be
other branches of government.”
performance or effectiveness of the
vested in one supreme
military judge. Art. 26, UCMJ, 10 U.S.C. §
Court, and in ... inferior
United States v. Will, 449 U.S. 200, 217-
826.
courts .... The Judges ...
18 (1980).
shall hold their Offices
Article 37, UCMJ, prohibits unlawful
during good Behaviour,
Judges with a pecuniary interest in the
influence of courts-martial through
and shall receive ... a
outcome of a case or other conflicts of
admonishment, censure, or reprimand of
Compensation, which shall
interest are disqualified and must recuse
its members by the convening authority
not be diminished during
themselves.
or commanding officer, or any unlawful
their Continuance in
28 U.S.C. § 455.
attempt by a person subject to the UCMJ
Office.”
to coerce or influence the action of a
court-martial or convening authority.
Article III § 1.
Art. 37, UCMJ, 10 U.S.C. § 837.
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Military Justice: Courts-Martial, An Overview

Constitutional
Safeguards
Federal Court
General Courts-Martial
Right to Trial By
The pool from which juries are drawn
A military accused has no Sixth
Impartial Jury
must represent a fair cross section of the
Amendment right to a trial by petit jury.
community. Taylor v. Louisiana, 419 U.S.
Ex Parte Quirin, 317 U.S. 1, 39-40 (1942)
“The Trial of all Crimes,
522 (1975).
(dicta).
except in Cases of
Impeachment, shal be by
There must further be measures to
However, “Congress has provided for
Jury; ....”
ensure individual jurors selected are not
trial by members at a court-martial.”
biased (i.e., the voir dire process). Lewis v.
United States v. Witham, 47 MJ 297, 301
Art III § 2 cl. 3.
United States, 146 U.S. 370 (1892); see
(1997); Art. 25, UCMJ, 10 U.S.C. § 825.
“In all criminal
Fed. R. Crim. P. 24 (peremptory
The Sixth Amendment requirement that
prosecutions, the accused
challenges).
the jury be impartial applies to court-
shall enjoy the right to a ...
The trial must be conducted in a manner
martial members and covers not only the
trial, by an impartial jury of designed to avoid exposure of the jury to selection of individual jurors, but also
the state ....”
prejudicial material or undue influence. If
their conduct during the trial proceedings
Amendment VI.
the locality of the trial has been so
and the subsequent deliberations. United
saturated with publicity about a case that
States v. Lambert, 55 M.J. 293 (2001).
it is impossible to assure jurors will not
be affected by prejudice, the defendant is
The absence of a right to trial by jury
entitled to a change of venue. Irvin v.
precludes criminal trial of civilians by
Dowd, 366 U.S. 717 (1961).
court-martial.
Reid v. Covert, 354 U.S. 1 (1957); Kinsel a
v. United States ex rel. Singleton, 361 U.S.
234 (1960).
Right to Appeal to
Originally, the writ of habeas corpus
The writ of habeas corpus provides the
Independent Reviewing permitted col ateral attack upon a
primary means by which those sentenced
Authority
prisoner’s conviction only if the
by military court, having exhausted
sentencing court lacked subject matter
military appeals, can challenge a
“The Privilege of the Writ
jurisdiction. It later evolved into an
conviction or sentence in a civilian court.
of Habeas Corpus shal not avenue for the chal enge of federal and
The scope of matters that a court will
be suspended, unless when state convictions on other due process
address is more narrow than in challenges
in Cases of Rebellion or
grounds, to determine whether a
of federal or state convictions.
Invasion the public Safety
prisoner’s detention is “contrary to the
may require it”
Constitution or laws or treaties of the
Burns v. Wilson, 346 U.S. 137 (1953).
Article I § 9 cl. 2.
United States.” 28 U.S.C. §§ 2241 et seq.
However, Congress created a civilian
court, the Court of Appeals for the
Armed Forces, to review military cases.
Protection against
The death penalty is not per se
Death may only be adjudged for certain
Excessive Penalties
unconstitutional, but its discriminatory
crimes where the defendant is found
and arbitrary imposition may be, and the
guilty by unanimous vote of court-martial
“Excessive bail shal not be
death penalty may not be automatic. See
members present at the time of the vote.
required, nor excessive
Gregg v. Georgia, 428 U.S. 153 (1976); 18 Prior to arraignment, the trial counsel
fines imposed, nor cruel
U.S.C.§ 3592 (mitigating /aggravating
must give the defense written notice of
and unusual punishments
circumstances).
aggravating factors the prosecution
inflicted.”
intends to prove. R.C.M. 1004.
When the death penalty may be imposed,
Amendment VIII.
the defendant shall be provided a list of
A conviction of spying during time of war
potential jurors and witnesses, unless the
under article 106, UCMJ, carries a
court finds that such action might
mandatory death penalty.
jeopardize the life or safety of any person.
18 U.S.C. § 3432.
10 U.S.C. § 906.
A special hearing is held to determine
whether the death sentence is warranted.
18 U.S.C. § 3593.

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Military Justice: Courts-Martial, An Overview


Author Contact Information

R. Chuck Mason

Legislative Attorney
rcmason@crs.loc.gov, 7-9294

Acknowledgments
This report was originally prepared by Jennifer K. Elsea, Legislative Attorney, American Law Division.

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