Military Courts-Martial Under the Military Justice Act of 2016

Military Courts-Martial Under the Military Justice Act of 2016

Military Courts-Martial Under the
August 28, 2020
Military Justice Act of 2016
Jennifer K. Elsea
The Supreme Court has called military justice a system of justice separate from jurisprudence in
Legislative Attorney
the civilian courts. Members of the Armed Forces are subject to rules, orders, proceedings, and

consequences different from the rights and obligations of their civilian counterparts. Accordingly,
Jonathan M. Gaffney
it might be said that discipline is as important as liberty interests in the military justice system.
Legislative Attorney
The Constitution specifically exempts military members accused of a crime from the Fifth

Amendment right to a grand jury indictment, from which the Supreme Court has inferred there is
no right to a civil jury in courts -martial. 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.
Congress enacted the Uniform Code of Military Justice (UCMJ) under its constitutional authority to provide for disciplining
the land and naval forces. Presidents have implemented the UCMJ through the Manual for Courts-Martial (MCM). The
MCM contains the Rules for Courts -Martial (R.C.M.), the Military Rules of Evidence (Mil. R. Evid.), and the punitive
articles of the UCMJ, with commentary. The MCM covers almost all aspects of military law.
The UCMJ gives courts-martial jurisdiction over servicemembers as well as several other categories of individuals connected
to the uniformed services. There are three types of courts-martial: (1) summary court-martial (for minor offenses), (2) special
court-martial (for offenses tantamount to misdemeanors), and (3) general court-martial (for offenses tantamount to felonies).
While the R.C.M. and the Mil. R. Evid. are applicable to all courts -martial, the jurisdiction and authorized punishments vary
among the different types.
A number of concerns relating to military justice led Congress in 2016 to enact the Military Justice Act of 2016 (MJA),
which made sweeping changes to the UCMJ. The UCMJ provides the basic framework for the military justice system and
defines offenses subject to trial by court-martial. Proponents of reform have for decades advocated changes relating to
military jurisdiction; pretrial, trial, and post-trial process; over charging; court-martial panel selection; and appellate review.
A perennial concern has been the perception of a lack of complete judicial independence, as well as commander’s control
over courts-martial, in part by choosing which charges to prefer against whom and by exercising post -trial clemency. One
major recent concern has been the handling of sexual assault cases in the military. Congress enacted the MJA and other
amendments to the UCMJ to address some of these issues.
This report provides an overview of the military justice system and the reforms enacted through the MJA and other
legislation. It begins with a discussion of due process followed by a background of constitutional underpinnings for the
military justice system and Congress’s role in it. It follows with a discussion of military jurisdiction, military offenses s et
forth in the punitive articles of the UCMJ, and the three types of court-martial. The report continues with overviews of
pretrial and trial process, sentencing and post-trial process, and appellate procedures. The report concludes with a table
comparing selected constitutional protections as they apply in general courts-martial with those that operate in federal
criminal court.
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Contents
Introduction ................................................................................................................... 1
Military Due Process ....................................................................................................... 2
Military Courts-Martial .................................................................................................... 3
Jurisdiction ............................................................................................................... 4
Types of Courts-Martial.............................................................................................. 5
Summary Courts-Martial ....................................................................................... 6
Special Courts-Martial .......................................................................................... 6
General Courts-Martial ......................................................................................... 7
Types of Offenses ...................................................................................................... 8
Investigation and Charging........................................................................................ 10
Preliminary Inquiry ............................................................................................ 10
Preferral of Charges ............................................................................................ 11
Referral of Charges............................................................................................. 11
Article 32 Hearing .............................................................................................. 11
Ancil ary Matters ............................................................................................... 12
Pretrial and Trial Process .......................................................................................... 17
Convening the Court-Martial................................................................................ 17
Pretrial Matters .................................................................................................. 20
Trial Procedure .................................................................................................. 22
Findings............................................................................................................ 24
Sentencing ........................................................................................................ 24
Post-Trial Review .................................................................................................... 25
Appel ate Review .................................................................................................... 26
Selected Procedural Safeguards ................................................................................. 27

Tables
Table 1. Selected Procedural Safeguards in Federal and Military Courts ................................ 27

Contacts
Author Information ....................................................................................................... 33

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Introduction
A number of concerns relating to military justice led Congress to enact the Military Justice Act of
2016 (MJA),1 comprising sweeping changes to the Uniform Code of Military Justice (UCMJ).2
The UCMJ provides the basic framework for the military justice system and defines offenses
subject to trial by court-martial. Proponents of reform have for decades advocated changes
relating to military jurisdiction; pretrial, trial, and post-trial process; over charging; court-martial
panel selection; and appel ate review.3 A perennial concern has been the perception of a lack of
complete judicial independence,4 as wel as commander’s control over courts-martial, in part by
choosing which charges to prefer against whom and by exercising post-trial clemency.5 One
major recent concern has been the handling of sexual assault cases as wel as domestic and
intimate partner violence in the military.6
In part due to these concerns and because the Department of Defense (DOD) had not undertaken
a comprehensive review of the military justice system since enactment of the UCMJ in 1950,7 the
Secretary of Defense, on the recommendation of the Chairman of the Joint Chiefs of Staff,
directed the DOD General Counsel to conduct a “holistic” review of the UCMJ and issue
recommendations.8 The result was the establishment of the Military Justice Review Group
(MJRG), which issued its final report in December 2015.9 The MJA followed a year later. One
noted scholar of military law described the UCMJ overhaul as accomplishing the following broad
goals:
First, the amendments expand and solidify the role of military judges in the American
military justice system. Although commanders continue to play a critical role in military
justice, military judges will not only be able to address issues raised before charges are
referred to a court-martial, but will also have the final say in the disposition of the court-

1 National Defense Authorization Act for FY2017, Pub. L. No. 114-328, div. E, §§ 5001-5542, 130 Stat. 2000, 2894
(2016), codified at 10 U.S.C. §§ 801-946a. T he changes did not take effect until January 1, 2019.
2 Chapter 47 of title 10, U.S. Code, 10 U.S.C. §§ 801-946a (2019).
3 David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act Of 2016, 49 ST. MARY’S L.J.
1, 14-16 (2017) (describing various proposals for reforming the military justice system).
4 See MILITARY JUSTICE CASES AND MATERIALS 783 (Eugene R. Fidell, et al., eds., 2d ed. 2012) (commenting that the
lack of fixed term of office for military judges could give rise to at least the perception of a lack of judicial
independence).
5 Schlueter, supra note 3, at 15.
6 Id. at 13 (noting that Congress amended the UCMJ in 2013, 2014 and 2015, to address issues related to sexual
assault). For information about legislative action to address sexual assault in the military during the 113 th and 114th
Congresses, see CRS Report R43168, Military Sexual Assault: Chronology of Activity in the 113th -114th Congresses
and Related Resources, by Barbara Salazar T orreon and Carla Y. Davis-Castro. For an overview of the issue, see CRS
Report R44944, Military Sexual Assault: A Fram ework for Congressional Oversight, by Kristy N. Kamarck and
Barbara Salazar T orreon. For current legislative activity, see CRS Report R46107, FY2020 National Defense
Authorization Act: Selected Military Personnel Issues, coordinated by Bryce H. P. Mendez.
7 Schlueter, supra note 3, at 13-16 (explaining impetus for military justice reform). As amended by the MJA, Art. 146
of the UCMJ establishes a new Military Justice Review Panel with the task of reviewing the military justice system
every eight years. 10 U.S.C. § 946. In 2019, Congress tasked DOD with studying an alternative military justice system
that would shift some court -martial decisions in many cases from the commander to a legal advisor outside the chain of
command. National Defense Authorization Act for FY2020 , Pub. L. No. 116-92 § 540F, 133 Stat. 1367 (2019).
8 Schlueter, supra note 3, at 18.
9 REPORT OF THE MILITARY JUSTICE REVIEW GROUP (2015) (hereinafter MJRG REP.), available at
https://dacipad.whs.mil/images/Public/10-Reading_Room/04_Reports/03_DoD_Reports_Regs_Surveys/
DoD_MJRG_Report/MJRG_Report_Part1_20151222.pdf .
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martial by issuing the “judgment” in a case, after the convening authority completes his or
her limited review of the court-martial. Second, the changes demonstrate the continuing
view that the military justice system should more closely parallel the federal criminal
justice model. Throughout, it is clear that new procedures, and even terminology, mirror
federal practice. And third, Congress completely reorganized the punitive articles,
amended a significant number of those articles, and “migrated” a large number of offenses
from coverage under Article 134, to new punitive articles. Collectively, these changes, and
others, signal an extreme makeover of American military justice.10
This report provides an overview of the military justice system and the reforms enacted through
the MJA and other legislation. It begins with a discussion of due process followed by a
background of constitutional underpinnings for the military justice system and Congress’s role in
it. It follows with a discussion of military jurisdiction, military offenses set forth in the punitive
articles of the UCMJ, and the three types of court-martial: summary, special, and general. The
report continues with overviews of pretrial, trial process, sentencing, and post-trial and appel ate
procedures. The report concludes with Table 1 comparing selected constitutional protections as
they apply in general courts-martial with those that operate in federal criminal court.
Military Due Process
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.11 What is fundamental y 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.12 In the criminal law
system, some basic objectives are to discover the truth in order to punish the guilty
proportionately with their crimes, acquit the innocent without unnecessary delay or expense, and
prevent and deter further crime, thereby providing for public order.13 Military justice shares these
objectives in part, but also serves to enhance discipline throughout the Armed Forces, serving the
overal objective of providing an effective national defense.14
The Fifth Amendment to the Constitution provides that “no person shal be ... deprived of life,
liberty, or property, without due process of law.” Due process includes the right to notice and the
opportunity to be heard whenever the government places any of these fundamental liberties at
stake.15 In the civilian setting, the exact process that is due is determined by a balancing of
interests affected (individual or government), the risk of an erroneous deprivation of such an
interest, and the probative value of additional procedural rights.16 However, the Supreme Court
has held that this balancing test does not apply in the context of military justice.17 Rather, the

10 Schlueter, supra note 3, at 9.
11 U.S. CONST. amends. I-X.
12 See CONG. RESEARCH SERVICE, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND
INTERPRETATION 1534 (Centennial ed. 2013).
13 See WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 1.2(e) (2d ed. 2003).
14 MANUAL FOR COURTS-MARTIAL, UNITED STATES I-1 (2019) (hereinafter MCM) (“The purpose of military law is to
promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and
effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”
15 Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
16 Id. at 335.
17 United States v. Weiss, 510 U.S. 163, 178-79 (1994) (finding no military due process right to military judge with
fixed term of office).
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military justice system fal s under Middendorf v. Henry,18 which cal s for a test of whether factors
favoring a particular right are so extraordinarily weighty as to overcome the balance struck by
Congress. Perhaps because of this difference, military courts often use the term “military due
process”19 to describe the rights to which the accused at a court-martial is entitled.
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 chal enge
the government’s conduct that may have violated the rights of the accused. The system of
procedural rules used to conduct a criminal hearing serves as a safeguard against violations of
constitutional rights that take place outside the courtroom. The differences in procedural matters
between the military justice system and the civilian court system have frequently given rise to
debate.20
The Supreme Court has cal ed military justice a system of justice separate from jurisprudence in
the civilian courts.21 Members of the Armed Forces are subject to rules, orders, proceedings, and
consequences different from the rights and obligations of their civilian counterparts.22
Accordingly, the military justice system is designed to strike a balance between individual liberty
and unique need for discipline.23 The Constitution specifical y exempts military members accused
of a crime from the Fifth Amendment right to a grand jury indictment.24 The Supreme Court has
inferred from that absence that there is also no right to a civil jury in courts-martial.25 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.26
Military Courts-Martial
The Constitution, to provide for the common defense,27 gives Congress the power to raise,
support, and regulate the Armed Forces,28 but makes the President Commander-in-Chief of the

18 425 U.S. 25, 43-44 (1976).
19 DAVID. A. SCHLEUTER, MILITARY CRIMINAL JUSTICE § 1-1(C) (9th ed. 2015).
20 Id. at § 1-1(A)
21 Parker v. Levy, 417 U.S. 733, 744 (1974) (“ Just as military society has been a society apart from civilian society, so
‘[m]ilitary law ... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial
establishment .’” (citing Burns v. Wilson, 346 U.S. 137, 14 0 (1953)).
22 United States v. Watson, 69 M.J. 415, 416 (C.A.A.F. 2011) (citing Parker, 417 U.S. at 733).
23 See SCHLEUTER, supra note 19, §1-1; Curry v. Sec’y of Army, 595 F.2d 873, 880 (D.C. Cir. 1979) (“T he provisions
of the UCMJ with respect to court -martial proceedings represent a congressional attempt to accommodate the interests
of justice, on the one hand, with the demands for an efficient, well-disciplined military, on the other.”).
24 U.S. CONST. amend. V (“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 na val forces, or in the Militia, when in
actual service in time of War or public danger .... ”).
25 See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). Congress has, in article 32, UCMJ, provided for a pretrial hearing
that performs the same basic function as a grand jury. 10 U.S.C. § 832 (2017). Court-martial panels consist of a
military judge and, in some cases, several panel members, who function similarly to a jury.
26 United States ex rel. T oth v. Quarles, 350 U.S. 11, 15 (1955) (“[T]he power granted Congress ‘T o make Rules’ to
regulate ‘the land and naval Forces’ would seem to restrict court -martial jurisdiction to persons who are actually
members or part of the armed forces [because] any expansion of court -martial jurisdiction … necessarily encroaches on
the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with
more constitutional safeguards than in military tribunals.”).
27 U.S. CONST. pmbl.
28 Id. art. I § 8, cls. 11-14 (War Powers).
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Armed Forces.29 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”30 is entirely separate from
Article III.31 Therefore, courts-martial are not Article III courts and are not subject to the rules
that apply in federal courts.32
Congress enacted the UCMJ under its authority to provide for disciplining the land and naval
forces.33 Presidents have implemented the UCMJ through the Manual for Courts-Martial (MCM),
which President Ronald Reagan initial y prescribed by Executive Order 12473 on April 13,
1984.34 The MCM contains the Rules for Courts-Martial (R.C.M.), the Military Rules of
Evidence (Mil. R. Evid.),35 and the punitive articles of the UCMJ, with commentary. The MCM
covers almost al aspects of military law.36
Jurisdiction
The UCMJ gives courts-martial jurisdiction over servicemembers37 as wel as several other
categories of individuals, including retired members of a regular component of the Armed Forces
entitled to pay38 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; cadets
and midshipmen at the service academies; 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 individuals belonging to one
of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of
Prisoners of War39 who violate the law of war; and persons serving with or accompanying the
military in the field “[i]n time of declared war or a contingency operation.”40 The last provision

29 Id. art. II § 2, cl. 1.
30 Id. art. I § 8, cl. 14.
31 See Dynes v. Hoover, 61 U.S. (How.) 65 (1858).
32 See WILLIAM WINTHROP, WINTHROP’S MILITARY LAW AND PRECEDENTS 48-49 (2d. ed. 1920) (describing courts-
martial as “ instrum entalities 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).
33 U.S. CONST. art. I, § 8, cl. 14.
34 MCM, supra note 14. T he current version is the 2019 edition.
35 T he President establishes rules of procedures and rules of evidence for courts-martial as authorized by Art. 36,
UCMJ, 10 U.S.C. § 836. T he regulations are, to the extent practicable, 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,” but may not be contrary
to or inconsistent with the UCMJ. Id.
36 Each military service supplements the MCM to meet its individual needs. T he 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 Instruction
51-201.
37 T he 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, U.S. Space Force, and the U.S. Coast Guard, whether or not it is serving as part of the
Navy. It also includes members of the National Guard and Air National Guard when in federal service.
38 T he Navy-Marines Court of Criminal Appeals recently found that, although it is constitutional to subject military
retirees to UCMJ jurisdiction, the disparity in treatment between regular component retirees and reserve retirees
amounts to an unconstitutional violation to the right of equal protection. United States v. Begani, --- M.J. ----, 2019 WL
3542910 (N-M. Ct. Crim. App. 2019).
39 Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949, 6 U.S.T . 3316, 75
U.N.T .S. 135.
40 Art. 2, UCMJ; 10 U.S.C. § 802(a)(10).
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covering civilians serving with or accompanying the Armed Forces was limited by judicial
interpretation41 to declared wars, but Congress amended it in 2006 to broaden its application to
contingency operations.42 Jurisdiction of a court-martial does not depend on where the offense
was committed; it depends solely on the status of the accused.43
In the MJA, Congress expanded the provision regarding UCMJ jurisdiction over reservists and
members of the National Guard in federal service44 to cover not only inactive duty training, but
also periods of travel to and from the training site and intervals between consecutive periods of
training pursuant to orders or regulations.45 This change closed a gap in jurisdiction
encompassing the periods of time when trainees were subject to orders but were not actively
performing training, such as off-duty time, time between classes, or travel time.46
Types of Courts-Martial
Congress has established three types of courts-martial: (1) summary court-martial, (2) special
court-martial, and (3) general court-martial.47 While the R.C.M. and the Mil. R. Evid. apply to al
courts-martial, the jurisdiction and authorized punishments vary among the different types. The
function of the summary court-martial is to “promptly adjudicate minor offenses under a simple
procedure” and “thoroughly and impartial y 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.”48
Special and general courts-martial adjudicate more serious offenses and can impose more severe
punishments; thus the procedures in those tribunals are more complex. Only general courts-
martial have jurisdiction over sexual assault offenses or attempted offenses under Articles 120(a)
(rape), 120(b) (sexual assault), 120b(a) (rape of a child), or 120b(b) (sexual assault of a child).49

41 United States v. Averette, 41 C.M.R. 363, 365 (C.M.A.1970) (interpreting “in time of war” to refer to war declared
by Congress).
42 Pub. L. No. 109-364, div. A, title V, § 552, 120 Stat. 2217 (2006). “Contingency operation” is defined in 10 U.S.C.
101(a)(13) to mean “a military operation that-(A) is designated by the Secretary of Defense as an operation in which
members of the armed forces are or may become involved in military actions, operations, or hostilities against an
enemy of the United States or against an opposing military force; or (B) results in the call or order to, or retention on,
active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12304a, 12305, or 12406
of this title, chapter 13 of [title 10], section 712 1 of title 14, or any other provision of law during a war or during a
national emergency declared by the President or Congress.”
43 See Solorio v. United States, 483 U.S. 435, 440-41 (1987) (overruling O’Callahan v. Parker, 395 U.S. 258 (1969)). A
few articles in the UCMJ apply to “any person” and are thus not limited to servicemembers and other persons subject to
the UCMJ. T hese include spying (Art. 103, UCMJ; 10 U.S.C. § 903), aiding the enemy (Art. 103b, UCMJ; 10 U.S.C.
§ 903b), and violations of the law of war (Art. 18, UCMJ; 10 U.S.C. § 818).
44 For information about different types of reserve service, see CRS Report RL30802, Reserve Component Personnel
Issues: Questions and Answers, by Lawrence Kapp and Barbara Salazar T orreon .
45 Art. 2(a)(3), UCMJ;10 U.S.C. § 802(a)(3).
46 Schlueter, supra note 3, at 22-23 (noting appellate court decisions creating gap, e.g. United States v. Wolpert, 75
M.J. 777, 782 (A. Ct. Crim. App. 2016); United States v. Spradley, 41 M.J. 827 (N-M. Ct. Crim. App. 1995)).
47 Art. 16, UCMJ; 10 U.S.C. § 816.
48 R.C.M. 1301(b).
49 Art. 18(c), UCMJ; 10 U.S.C. § 818(c). Accused found guilty of these offenses or conspiracy to commit these
offenses are subject to mandatory dismissal or dishonorable discharge. Art. 56, UCMJ; 10 U.S.C. § 856.
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Summary Courts-Martial
The summary court-martial can adjudicate minor offenses al egedly committed by enlisted
servicemembers.50 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-4,51 the summary court-martial may not adjudge confinement or hard
labor without confinement, and can reduce a convicted accused only to the next lower pay
grade.52 Summary courts-martial are composed of one commissioned officer who need not be a
lawyer.53 The accused must consent to the proceedings54 and normal y is not entitled to a lawyer.55
If an accused refuses to consent to a trial by summary court-martial, the convening authority may
order trial by special or general court-martial as may be appropriate.56 As amended by the MJA, a
finding of guilty at a summary court-martial is not a criminal conviction.57
Special Courts-Martial
The special court-martial can try any servicemember for any non-capital offense or, under
presidential regulation, capital offenses.58 Special courts-martial general y try offenses that are
tantamount to misdemeanors. A special court-martial can be composed of a military judge alone
or a military judge and four members.59 Regardless of the offenses tried, the maximum
punishment al owed at a special court-martial with members 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.60 Special courts-martial may
not sentence officers to dismissal.61 As amended by the MJA, in the case of a special court-
martial composed of a judge alone, it may not adjudge a bad-conduct discharge, confinement of
more than six months, or forfeiture of pay for more than six months.62 With the consent of the

50 Art. 20, UCMJ; 10 U.S.C. § 820.
51 Id. Pay grade E-4 consists of corporals or specialists (Army), petty officers 3 rd class (Navy), corporals (Marines), and
senior airmen (Air Force).
52 R.C.M. 1301; Art 20, UCMJ; 10 U.S.C. § 820.
53 Art. 16, UCMJ; 10 U.S.C. § 816.
54 Art. 20, UCMJ; 10 U.S.C. § 820.
55 Middendorf v. Henry, 425 U.S. 25 (1976).
56 Art. 20, UCMJ; 10 U.S.C. § 820.
57 Art. 20, UCMJ; 10 U.S.C. § 820(b).
58 Arts. 16 & 19, UCMJ; 10 U.S.C. §§ 816, 819; R.C.M. 201(f)(2)(A). Capital offenses, as defined by R.C.M. 103(4),
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. R.C.M. 201(f)(2)(C).
59 T he accused has the right to choose whether to be tried by a military judge alone or a military judge and members.
Art. 16, UCMJ; 10 U.S.C. § 816(c). T he option for a trial by members only was eliminated in the MJA. See id. T he
MJA also increased the size of the panel from three members to four. Id. Enlisted servicemembers may request that the
members’ panel include enlisted members. R.C.M. 903.Whenever possible, members must not be appointed who are
junior to the accused in rank or grade. Art. 25, UCMJ; 10 U.S.C. § 825.
60 Art. 19, UCMJ; 10 U.S.C. § 819; R.C.M. 201(f)(2)(B).
61 Art. 19(a), UCMJ; 10 U.S.C. § 819(a).
62 Art. 19, UCMJ; 10 U.S.C. § 819(b).
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parties, a convening authority may appoint a magistrate judge to replace a military judge sitting
alone.63
In contrast to the unanimity needed in civilian criminal trials, the agreement of three-fourths of
the members of a special court-martial is necessary to find the accused guilty.64 Otherwise, the
accused is acquitted.65 There are no “hung juries” in courts-martial. The accused is entitled to an
appointed military attorney or a military counsel of his or her selection, or he can hire a civilian
counsel at no expense to the government.66
In the case of a trial by a military judge alone, the military judge also decides the sentence.67
Otherwise, if the accused chooses sentencing by members, three-fourths of the members must
concur in the sentence.68
General Courts-Martial
A general court-martial is the highest trial level in military law and adjudicates the most serious
offenses, those comparable to felonies. Pursuant to amendments enacted by the MJA, in non-
capital cases, it is composed of a military judge sitting alone, if the accused so requests, or eight
members and a military judge.69 For capital cases, twelve members are required.70 Three-fourths
of the members must concur in order to find the accused guilty, except in capital cases, in which
case the verdict must be unanimous.71
The general court-martial can adjudge, within the limits prescribed for each offense, a wide range
of punishments, including confinement; reprimand; forfeitures of up to al pay and al owances;
reduction to the lowest enlisted pay grade; punitive discharge (bad conduct discharge,
dishonorable discharge, or dismissal, in the case of officers); restriction; fines; and, for certain
offenses, death.72 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.73 A
court-martial may adjudge a penalty of death only with the concurrence of al members, if the
case was referred to the court-martial as a capital case, and if one or more specified aggravating
factors are proved beyond a reasonable doubt.74 Otherwise, the military judge wil sentence the
accused unless the accused requests sentencing by members,75 in which case three-fourths of the
members must concur in the sentence.76

63 Art. 19, UCMJ; 10 U.S.C. § 819(c).
64 Art. 52, UCMJ; 10 U.S.C. § 852.
65 R.C.M. 921(c).
66 R.C.M. 901(d)(4)(A).
67 Art. 52, UCMJ; 10 U.S.C. § 852.
68 Art. 52, UCMJ; 10 U.S.C. § 852; Art. 53, UCMJ; 10 U.S.C. § 853.
69 Art. 16, UCMJ; 10 U.S.C. § 816(c). Prior to the MJA, panels consisted of no fewer than five members.
70 Art. 25a, UCMJ; 10 U.S.C. § 825a.
71 Art. 52, UCMJ; 10 U.S.C. § 852.
72 Art. 18, UCMJ; 10 U.S.C. § 818; R.C.M. 1003.
73 Art. 38, UCMJ; 10 U.S.C. § 838; R.C.M. 901(d)(4)(A).
74 R.C.M. 1004. In cases where the death penalty is sought, the accused is, “[t]o the greatest extent practicable,” entitled
to a defense counsel who is learned in the applicable law. Art. 27, UCMJ; 10 U.S.C. § 827(d).
75 Art. 53, UCMJ; 10 U.S.C. § 853.
76 Art. 52, UCMJ; 10 U.S.C. § 852.
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Types of Offenses
Courts-martial try “military offenses,” which are listed in the punitive articles of the UCMJ and
codified in 10 U.S.C. §§ 877-934. Some “military offenses” have a civilian analog, but some are
exclusive to the military, such as failure to obey an order.77 The UCMJ authorizes the President to
prescribe the punishments that a court-martial may impose within the limits established by
Congress.78 As amended by the MJA, the court-martial is to “impose punishment that is
sufficient, but not greater than necessary, to promote justice and to maintain good order and
discipline in the armed forces, taking into consideration [a number of factors].”79
A court-martial may try a servicemember for offenses not specifical y covered in the other
punitive articles through the use of the General Article—UCMJ Article 134.80 The General Article
defines as offenses al unenumerated conduct in three categories: (1) “disorders and neglects to
the prejudice of good order and discipline in the armed forces,” (2) “al conduct of a nature to
bring discredit upon the armed forces,” and (3) “crimes and offenses not capital, of which persons
subject to this chapter may be guilty.” These offenses are to “be taken cognizance of by a general,
special, or summary court martial, according to the nature and degree of the offense.”81 The
Armed Forces have used the third category in Article 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 MJA amended Article 134 to define the term “crimes and offenses not capital” to include
conduct committed outside the United States “that would constitute a crime or offense not capital
if the conduct had been engaged in within the special maritime and territorial jurisdiction of the
United States….”82 The intent for the change was to make military practice uniform throughout
the world.83 Previously, extraterritorial conduct was not chargeable under the third prong of
Article 134 unless the analogous federal offense was itself applicable extraterritorial y.84
Otherwise, the government had to charge federal crimes indirectly by proving not only the
elements of the federal crime, but also that the conduct was prejudicial of good order and
discipline or discrediting to service to satisfy the first two categories of Article 134.85
The MJA added four new offenses to the punitive articles and spel ed out a number of offenses
that had been prosecuted under Article 134.86 The new offenses are

77 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).
78 Art. 56, UCMJ; 10 U.S.C. § 856.
79 Art. 56, UCMJ; 10 U.S.C. § 856(c). Congress in 2019 directed the Secretary of Defense to develop nonbinding
guidelines on sentences for all UCMJ offenses. Pub. .L. No. 116-92 § 537, 133 Stat. 1363 (2019), codified at 10 U.S.C.
§ 856 note.
80 Art. 134, UCMJ; 10 U.S.C. § 934.
81 Id.
82 Special maritime and territorial jurisdiction of the United States is defined in 18 U.S.C. § 7.
83 MJRG Rep., supra note 9, at 987 (explaining the recommended language would provide “world-wide applicability of
federal offenses charged under clause 3 [of Article 134]”).
84 Id.
85 Id.
86 Schlueter, supra note 3, at 93. T he enumeration of offenses previously charged under Article 134 means that the
government will no longer need to prove that the conduct discredits the Armed Forces or is prejudicial to discipline.
See MJRG Rep., supra note 9, at 987.
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 Article 93a, Prohibited Activities with Military Recruit or Trainee by Person in
Position of Special Trust;87
 Article 121a, Fraudulent Use of Credit Cards, Debit Cards, and Other Access
Devices;88
 Article 123, Offenses Concerning Government Computers;89 and
 Article 132, Retaliation.90
Newly codified offenses previously prosecuted under Article 134 include solicitation,91
misprision of a serious offense,92 subornation of perjury,93 false official statements,94 obstruction
of justice,95 prevention of authorized seizure of property,96 public records offenses,97 parole
violation98 or escape from custody,99 bribery100 and graft,101 kidnapping,102 arson,103 assault,104
domestic violence,105 burglary,106 child endangerment,107 and breach of medical quarantine.108
Some of these offenses that might be considered military offenses include missing movement,109
offenses by or toward a sentinel or lookout,110 offenses involving passes,111 impersonation of an
officer,112 and wearing unauthorized insignia.113

87 10 U.S.C. § 893a (prohibiting inappropriate physical intimacy, as defined in regulation, between recruiters and
applicants for military service, between drill instructors and trainees, and between faculty and staff of the service
academies and cadets or midshipmen).
88 Art. 121a, UCMJ; 10 U.S.C. § 921a.
89 Art. 123, UCMJ; 10 U.S.C. § 923.
90 Art. 132, UCMJ; 10 U.S.C. 932 (protection for witnesses, victims, and other persons who report criminal activity).
91 Art. 82, UCMJ; 10 U.S.C. § 882.
92 Art. 131c, UCMJ; 10 U.S.C. § 931c.
93 Art. 131a, UCMJ; 10 U.S.C. § 931a.
94 Art. 107, UCMJ; 10 U.S.C. § 907.
95 Art. 131b, UCMJ; 10 U.S.C. § 931b.
96 Art. 131e, UCMJ; 10 U.S.C. § 931e.
97 Art. 104, UCMJ; 10 U.S.C. § 904.
98 Art. 107a, UCMJ; 10 U.S.C. § 907a.
99 Art. 87b, UCMJ; 10 U.S.C. § 887b.
100 Art. 124a, UCMJ; 10 U.S.C. § 924a.
101 Art. 124b, UCMJ; 10 U.S.C. § 924b.
102 Art. 125, UCMJ; 10 U.S.C. § 925.
103 Art. 126, UCMJ; 10 U.S.C. § 926.
104 Art. 128, UCMJ; 10 U.S.C. § 928.
105 Art. 128b, UCMJ; 10 U.S.C. § 928b.
106 Art. 129, UCMJ; 10 U.S.C. § 929.
107 Art. 119b, UCMJ; 10 U.S.C. § 919b. For a complete list, see Schlueter, supra note 3, at 94-105.
108 Art. 84, UCMJ; 10 U.S.C. § 884.
109 Art. 87, UCMJ; 10 U.S.C. § 887.
110 Arts. 95-95a, UCMJ; 10 U.S.C. §§ 895-95a.
111 Art. 105a, UCMJ; 10 U.S.C. § 905a.
112 Art. 106, UCMJ; 10 U.S.C. § 906.
113 Art. 106a, UCMJ; 10 U.S.C. § 906a.
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The MJA also amended Article 79 to authorize the President to prescribe lesser-included
offenses.114 This change was intended to provide notice by means other than the “elements test”—
a lesser-included offense is a subset of elements of an offense—so that offenses charged under
Article 134 may be brought within other punitive articles as lesser-included offenses.115 The
reform was considered advisable because the first two clauses of Article 134 provide that the
offense must discredit the armed forces or be prejudicial to good order and discipline, elements
not “articulated []or inherent in any of the enumerated punitive articles.”116 This meant that, prior
to the MJA, such offenses could not be the basis for conviction on lesser-included offenses. The
non-exhaustive list of designated lesser-included offenses now provided in Appendix 12 of the
MCM may reduce the charges that could accrue for the same conduct and reduce criminal
liability.117
Investigation and Charging
The first step in the military justice system is the preliminary inquiry. If warranted, the
commander or other accuser may issue a written charge sheet, subject to a preliminary hearing
under Art. 32, which is similar to a grand jury, and then referred to court-martial for trial.
Preliminary Inquiry
When a servicemember has reportedly committed an offense, the accused’s immediate
commander wil conduct a preliminary inquiry.118 This inquiry may include an examination of the
charges, which varies in length and scope depending on the offense(s) al eged and the complexity
of the case, and an investigative report or summary of expected evidence.119 Members of the
command may conduct the investigation or, in complex cases, military and civilian law
enforcement officials may conduct it.120 Once investigators gather evidence and the inquiry is
complete, the commander can choose to dispose of the charges by (1) taking no action,
(2) initiating administrative action,121 (3) imposing non-judicial punishment,122 (4) preferring
charges, or (5) forwarding to a higher authority for preferral of charges.123

114 Art. 79, UCMJ; 10 U.S.C. § 879.
115 MJRG Rep., supra note 9, at 680.
116 Id. at 678.
117 Id. at 680 (explaining that “[c]onvening authorities [may] refer to trial only the charges that capture the gravamen of
the accused’s misconduct, instead of having to file additional, alternative charges, which unnecessarily expose the
accused to excessively greater criminal liability”).
118 R.C.M. 303. A commander who receives a report of a sex -related offense by a servicemember in her chain of
command is to refer the report to the appropriate military criminal investigative organization. Id. (discussion).
119 Id. (discussion).
120 Id. (discussion).
121 Administrative action can include “counseling, admonition, reprimand, exhortation, disapproval, criticism, censure,
reproach, rebuke, extra military instruction, or the administrative withholding of privileges,” among other things.
R.C.M. 306(c)(2). Administrative discharge may also be considered where warranted. Id. (discussion).
122 Art. 15, UCMJ; 10 U.S.C. § 815.
123 R.C.M. 306(c)(5).
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Preferral of Charges
The first formal step in a court-martial, preferral of charges, consists of drafting a charge sheet
containing the charges and specifications124 against the accused. The accuser must sign the charge
sheet125 “under oath before a commissioned officer .. authorized to administer oaths.”126 The
accused’s immediate commander must inform the accused of the charges “as soon as practicable”
after they are preferred.127 Pre-referral proceedings may be conducted by a military judge, or in
some cases by a magistrate, to review requests for investigative subpoenas, search warrants,
orders for electronic communications, the appointment of an individual to represent the interests
of a victim, or matters related to pretrial confinement, mental capacity of the accused, or requests
for individual counsel.128
Referral of Charges
After preferral of charges, a convening authority129 may refer130 them to one of the three types of
courts-martial: summary, special, or general.131 The seriousness of the offenses al eged general y
determines the type of court-martial. The convening authority must be an officer with sufficient
legal authority and wil general y be the commander of the unit to which the accused is
assigned.132 In the case of sex-related offenses committed in the United States, the victim is to
have an opportunity to express views as to whether to prosecute the offense by court-martial or in
a civilian court with jurisdiction.133 If the victim prefers prosecution in a civilian court, the
commander or convening authority must notify the appropriate authorities and notify the victim
of the decision by those authorities to prosecute or not to prosecute.134
Article 32 Hearing
Prior to convening a general court-martial, a preliminary hearing is required.135 This hearing,
known as an Article 32 hearing, is meant to ensure that there is a basis for prosecution.136 A

124 “A specification is a plain, concise, and definite statement of the essential facts constituting the offense charged.”
R.C.M. 307(c)(3).
125 “Any person subject to the UCMJ may prefer charges [as the accuser].” R.C.M. 307(a).
126 R.C.M. 307(b).
127 Art. 30, UCMJ; 10 U.S.C. § 830(c); R.C.M. 308.
128 Art. 30a, UCMJ; 10 U.S.C. § 830a (added by the MJA and amended by Pub. L. No. 116-92 § 531, 133 Stat. 1359
(2019)); R.C.M. 309. Recipients of a subpoena or order to provide electronic communications may request the military
judge to quash the subpoena or order. R.C.M. 309(b)(3).
129 R.C.M. 504. Persons authorized to act as convening authorities for courts-martial are set forth in Arts. 22 -24,
UCMJ; 10 U.S.C. §§ 822-24.
130 Referral is the convening authority’s order “that charges and specifications against an accused be tried by a specified
court -martial.” Art. 34, UCMJ; 10 U.S.C. § 834(d).
131 R.C.M. 401(c).
132 R.C.M. 103(6).
133 R.C.M. 306(e).
134 Id.
135Art. 32, UCMJ; 10 U.S.C. § 832; R.C.M. 405.
136 Art. 32, UCMJ; 10 U.S.C. § 832. As revised in the MJA, the preliminary hearing officer is charged with (1) deciding
whet her the specification alleges an UCMJ offense, (2) determining whether there is probable cause to believe that the
accused committed the offense, (3) determining whether the convening authority has jurisdict ion over the offense and
the accused, and (4) providing the convening authority with a recommendation for disposition of the charges.
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preliminary hearing officer, who must be a commissioned officer and, except under “exceptional
circumstances,” a certified judge advocate,137 presides, and the accused has the same entitlements
to counsel as in a general- or special courts-martial.138 However, unlike in a civilian grand jury
investigation, where the accused has no access to the proceedings, the accused in an Article 32
hearing is afforded the opportunity to examine the evidence, cross-examine witnesses, and
present his own arguments.139 Any victim of the offense has the right to notification and the
opportunity to be present during the preliminary hearing,140 but a victim is not required to
testify.141 The government, the accused, and any victims may submit additional materials for the
preliminary hearing officer’s consideration.142 If the hearing uncovers evidence that the accused
has committed an offense not charged, the hearing officer can recommend additional charges.143
Likewise, if the hearing officer believes that evidence is insufficient to support a charge, he can
make recommendations to that effect.
Once the Article 32 hearing is complete, the hearing officer makes recommendations to the
convening authority’s legal advisor. The legal advisor, in turn, provides the convening authority
with a formal written recommendation, known as the Article 34, UCMJ advice, regarding the
disposition of the charges. The convening authority then determines whether to convene a court-
martial or dismiss the charges.144
Ancillary Matters
A number of other issues may arise in the pretrial phase, including questioning the accused,
determining whether to impose pretrial confinement, and assessing whether the accused has the
mental capacity to stand trial.
Self-Incrimination during Questioning
Servicemembers are entitled to Fifth Amendment protection against self-incrimination.145 Due to
the inherently coercive environment in the military,146 Congress provided in the UCMJ for the

137 R.C.M. 405(d)(1). A 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).
138 Art. 32(d), UCMJ; 10 U.S.C. § 832(d).
139 Art. 32(d), UCMJ; 10 U.S.C. § 832(d); R.C.M. 405(f). See United States v. Davis, 64 M.J. 445 (2007).
140 R.C.M. 405(g). T he judge may exclude the victim from the proceeding only in circumstances where a similarly
situated victim would be excluded at trial. Id.
141 Art. 32(d)(3), UCMJ; 10 U.S.C. § 832(d)(3).
142 Art. 32(c)(3), UCMJ; 10 U.S.C. § 832(c)(3).
143 Art. 32(f), UCMJ; 10 U.S.C. § 832(f).
144 Article 33, UCMJ, requires the President to direct the Secretary of Defense, in coordination with the Secretary of
Homeland Security, to issue “ non-binding guidance regarding factors that commanders, convening authorities, staff
judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition
of charges and specifications in the interest of justice and discipline.” 10 U.S.C. § 833. T he guidance is located in
Appendix 2.1 of the MCM, supra note 14.
145 See Mil. R. Evid. 304(a)(1)(A) (defining involuntary statement to mean “a statement obtained in violation of the
self-incrimination privilege or Due Process Clause of the Fifth Amendment to the United States Constitution, Article
31, or through the use of coercion, unlawful influence, or unlawful inducement”). T he Supreme Court has never held
that “the Fifth Amendment’s privilege against self-incrimination ... applies of its own force to the military,” but noted
that it need not decide the issue because the MCM applies it and military appellate courts have construed the Supreme
Court’s Fifth Amendment cases to military interrogations. Davis v. United States, 512 U.S. 452, 457 n. * (1994).
146 MODERN MILITARY JUSTICE 152 (Gregory E. Maggs and Lisa M. Schenck, eds. 2d ed. 2015).
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right to freedom from coercion during interrogation and the right to a warning147 similar to the
familiar Miranda warning required for interrogation of civilians in police custody.148 These
Article 31(b) warnings are required prior to any official law enforcement or disciplinary
interrogation149 of a suspect,150 who need not be in custody to be entitled to a warning.151 The
warning includes notification of (1) the nature of the accusation, (2) the right to remain silent, and
(3) the fact that any statement made may be used as evidence in a trial by court-martial.152 The
right to be informed of the right to counsel attaches once the accused is in custody or charges are
preferred.153 A failure to give a required warning or otherwise compel ing a suspect or accused to
provide involuntary testimony usual y results in the exclusion of such evidence at trial.154
Apprehension and Pretrial Confinement
Apprehension in the military, like arrest in the civilian context, means taking a person into
custody.155 Upon reasonable belief that an offense has been committed and that the person to be
apprehended has committed it, any officer, petty officer, warrant officer, noncommissioned
officer, or member of the military police or others performing law enforcement or guard duty may
apprehend a servicemember.156 No warrant is required.157 An apprehension may occur by oral or
written notice, but force may be used as reasonably necessary.158

147 Art. 31, UCMJ; 10 U.S.C. § 831.
148 Miranda v. Arizona, 384 U.S. 436, 489 (1966) (observing that the requirement to inform the accused of his right to
stay silent and to warn that statements may be used against him had long been provided in the UCMJ).
149 Casual conversations conducted in other than an official capacity do not require an Article 31 warning. MODERN
MILITARY JUSTICE, supra note 1467, at 158 (citing United States v. Duga, 10 M.J. 206 (C.M.A. 1981); United States v.
Loukas, 29 M.J. 385 (C.M.A. 1990); United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014)); United States v. Ra mos, 76
M.J. 372, 374 (C.A.A.F. 2017) (stating that “warning rights are required when ‘(1) a person subject to the UCMJ, (2)
interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements
regard the offense of which the person questioned is accused or suspected.’”) (citing Jones, 73 M.J. at 361 (C.A.A.F.
2014)). T he rights warning is also required for some “verbal acts” or actions that amount to a statement, such as
compulsion to produce certain evidence a servicemember is not ordinarily required to make available. SCHLEUTER,
supra note 19, § 5-4(A)(1)
150 Whether a servicemember is a “suspect” depends on whether the questioner believes the servicemenber committed
an offense and whether a reasonable person would have considered the servicemember to be a suspect. SCHLEUTER,
supra note 19, § 5-4(B)(1) (citing military case law).
151 Art. 31(b), UCMJ; 10 U.S.C. § 831(b) (providing that “[n]o person subject to this chapter may interrogate, or
request any statement from, an accused or a person suspected of an offense without first informing him of the nature of
the accusation and advising him that he does not have to make any statement regarding the offense of which he is
accused or suspected and that any statement made by him may be used as evidence against him in a trial by court -
martial”); see also MILITARY JUSTICE CASES AND MATERIALS, supra note 4, at 987 (comparing Miranda requirements
with Article 31(b)).
152 Mil. R. Evid. 305(c).
153 SCHLEUTER, supra note 19, § 5-4(B)(2).
154 Id. (describing voluntariness test); id. § 5-4(B)(3) (giving reasons an unwarned statement may nevertheless be
admissible).
155 Art. 7, UCMJ; 10 U.S.C. § 807; R.C.M. 302.
156 Id.; R.C.M. 302(b)-(c); MODERN MILITARY JUSTICE, supra note 7, at 164 (describing who may conduct
apprehensions, noting that noncommissioned officers and petty officers should not apprehend an officer unless directed
by a commissioned officer to do so).
157 R.C.M. 302(d).
158 Id.
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As required by the circumstances,159 servicemembers who are apprehended on suspicion of
having committed an offense may be subjected to one of four types of pretrial restraint. Pretrial
confinement is the most severe type of restraint and is subject to restrictions.160 The other forms
of restraint are moral rather than physical and include conditions on liberty (ordering a
servicemember to do or refrain from certain acts); restriction in lieu of arrest (ordering a
servicemember to stay within certain limits while continuing to perform duties); and arrest
(ordering a servicemember to stay within specific limits without performing full military
duties).161 None of the forms of restraint may be used to punish the suspect.162 If pretrial arrest or
confinement is ordered, the commander is required to take “immediate steps” to inform the
confinee of the specific charges serving as the basis for confinement and to either begin trial or
release the individual from confinement.163
Pretrial confinement, or depriving a person of freedom pending disposition of charges, is
available only for serious charges where probable cause exists. There must be a reasonable belief
that “(1) an offense triable by court-martial has been committed; (2) the person confined
committed it; and (3) confinement is required by the circumstances.”164 To continue confinement
past 72 hours, the commander must also determine that confinement is necessary because it is
foreseeable that
(a) The confinee will not appear at trial, pretrial hearing, or preliminary hearing, or
(b) The confinee will engage in serious criminal misconduct.165
If the commander approves continued confinement, he must document the reasons for the
decision in a “72-hour memorandum.”166
The R.C.M. also requires that a neutral and detached magistrate review the propriety of pretrial
confinement within 48 hours of the commencement of the confinement,167 which is the equivalent

159 R.C.M. 304(c). Conditions that may require pretrial restrain include flight risk and danger to the unit, where lesser
forms of restraint are inadequate. MODERN MILITARY JUSTICE, supra note 1467, at 165.
160 R.C.M. 305.
161 R.C.M. 304.
162 Art. 13, UCMJ; 10 U.S.C. § 813; R.C.M. 304(f).
163 Art. 10, UCMJ; 10 U.S.C. § 810 (as amended by the MJA).
164 R.C.M. 305(d).
165 R.C.M. 305(h)(2). Some of the factors which should be considered, according to the R.C.M. 305(h) discussion,
include
(1) the nature and circumstances of the offenses charged or suspected, including extenuating
circumstances;
(2) the weight of the evidence against the confinee;
(3) the confinee’s ties to the locale, including family, off-duty employment, financial resources, and
length of residence;
(4) the confinee’s character and mental condition;
(5) the confinee’s service record, including any record of previous misconduct;
(6) the confinee’s record of appearance at or flight from other pretrial investigations, trials, and
similar proceedings; and
(7) the likelihood that the confinee can and will commit further serious criminal misconduct if
allowed to remain at liberty.
166 R.C.M. 305(h)(2)(C).
167 R.C.M. 305(i)(1).
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of a probable cause hearing conducted by a magistrate in the civilian justice system.168 Final y, a
neutral and detached officer assigned the task by regulation conducts a seven-day probable cause
review to determine whether circumstances warrant continued confinement.169 The impartial
reviewer may review the commander’s 72-hour memorandum and any other written materials,
consider statements by the accused or his counsel, as wel as consider views offered by the
victim, where applicable.170 If the charges are referred to court-martial, the military judge wil
upon motion review the seven-day confinement decision for abuse of discretion and may order
release or administrative credit if there was such abuse or other requirements were not met.171 The
military judge may also order release if new information not presented to the reviewing officer
requires release or there was no independent review and no reason exists for continued
confinement.172 The typical remedy for noncompliance with the requirements is administrative
credit against the eventual sentence.173
Searches and Seizures
Military searches and seizures are governed by the Fourth Amendment174 and the Military Rules
of Evidence.175 The main difference between the application of the Fourth Amendment right to be
free from unreasonable government intrusions in the military and civilian contexts is the reduced
expectation of privacy in the military, especial y regarding searches that take place on
government property.176 A neutral and detached commander may issue a search authorization
upon the existence of probable cause to believe evidence of a crime is present in an area under his
command or on the person of a servicemember.177 A military judge or magistrate may also issue a
search authorization,178 or a search may be conducted pursuant to a search warrant issued by a
civilian judge or magistrate.179 A search authorization or warrant may be unnecessary in exigent
circumstances created where delay “would result in the removal, destruction, or concealment of
the property or evidence sought,” if military operational necessity would prevent communication
with the person who would grant the search authorization, or where the Constitution does not
require a warrant.180

168 SCHLEUTER, supra note 19, § 5-9(D)(1).
169 R.C.M. 305(i)(2).
170 R.C.M. 305(i)(2)(A). T he victim is entitled to notice that the hearing will take place, but the hearing may not be
unduly delayed to facilitate the victim’s attendance. Id.
171 R.C.M. 305(j).
172 SCHLEUTER, supra note 19, § 5-9(E).
173 R.C.M. 305(k). In the event the treatment amounts to pretrial punishment, the remedy is “meaningful sentence
relief,” which could amount to more credit time than time served. SCHLEUTER, supra note 19, § 5-10(D).
174 U.S. CONST. amend. IV (“ T he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause .”);
United States v. Middleton, 10 M.J. 123, 126 –27 (C.M.A. 1981) (“While certain protections [of the Bill of Rights] have
been deemed inapplicable, neither this Court nor the Supreme Court has ever held that the Fourth Amendment does not
shield the American serviceperson.” (citing United States v. Ezell, 6 M.J. 307, 313 (C.M.A. 1979)).
175 Mil. R. Evid. 311-17.
176 SCHLEUTER, supra note 19, § 5-3(A) (noting that the expectation of privacy is limited and the commander has power
to intrude into areas under his control).
177 Mil. R. Evid. 315(d) & (f).
178 Mil. R. Evid. 315(d).
179 Mil. R. Evid. 315(b)(2).
180 Mil. R. Evid. 315(g).
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As in the civilian context, some searches are reasonable even if conducted without probable
cause.181 These include border searches for immigration or customs purposes; searches conducted
upon entry or exit of a military instal ation, aircraft, or vessel; searches of government property
not issued for personal use; searches pursuant to voluntary and authorized consent; searches
incident to a lawful stop (including stop and frisk as wel as vehicle searches); searches incident
to apprehension; searches within jails or other places of confinement; emergency searches to save
lives or other emergency purposes; and searches of open fields.182
Evidence procured through an unreasonable search or seizure, or evidence derived from such
evidence, is inadmissible at court-martial unless an exception applies.183 The exceptions are
evidence used for impeachment purposes, evidence that inevitably would have been discovered,
or evidence acquired by good-faith reliance on an invalid search authorization or warrant.184
Evidence that is uncovered during a valid inspection or inventory is admissible at court-martial.185
An “inspection” is defined as “an examination of the whole or part of a unit, organization,
instal ation, vessel, aircraft, or vehicle ... conducted as an incident of command the primary
purpose of which is to determine and to ensure the security, military fitness, or good order and
discipline of the unit, organization, instal ation, vessel, aircraft, or vehicle.”186 “Inventory” is
defined as an administrative, “reasonable examination, accounting, or other control measure used
to account for or control property, assets, or other resources.”187 However, inspections and
inventories conducted for law enforcement or disciplinary purposes are not valid, and any
evidence of criminal activity discovered during their conduct may be inadmissible at court-
martial.188
Mental Capacity
The mental capacity of the accused may have bearing on whether he may be prosecuted or
convicted. A court-martial may not try an individual if he is suffering from a mental disease or
defect such that he is unable to understand the nature of the proceedings or conduct or cooperate
intel igently in the defense.189 In the event the mental capacity or mental responsibility of the
accused is in question, the convening authority or military judge may order an examination.190
The examination, often cal ed an R.C.M. 706 Board, must answer the four questions: (1) at the
time of the al eged criminal conduct, did the accused have a severe mental disease or defect; (2)

181 Mil. R. Evid. 314. T he Supreme Court has asserted that “ the most basic constitutional rule in [Fourth Amendment
jurisprudence” is that “ searches conducted outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment —subject only to a few specially established and well-delineated
exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971) (quoting Katz v. United States, 389 U.S. 347,
357 (1967)); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 –53, 358 (1977). Such warrant exceptions include
exigent circumstances (Payton v. New York, 445 U.S. 573, 590 (1980)); “ stop and frisk” searches (T erry v. Ohio, 392
U.S. 1 (1968)); searches incident to custodial arrests (United States v. Robinson, 414 U.S. 218 (1973)); seizures of
contraband “in plain view” (Washington v. Chrisman, 455 U.S. 1 (1982)); searches and seizures at the border (United
States v. Ramsey, 431 U.S. 606 (1977)).
182 Mil. R. Evid. 314.
183 Mil. R. Evid. 311.
184 Id.
185 Mil. R. Evid. 313.
186 Mil. R. Evid. 313(b).
187 Mil. R. Evid. 313(c).
188 Mil. R. Evid. 313; SCHLEUTER, supra note 19, § 5-3(E)(1).
189 R.C.M. 909(a).
190 R.C.M. 706.
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what is the clinical psychiatric diagnosis; (3) was the accused, at the time of the al eged criminal
conduct and as a result of such severe mental disease or defect, unable to appreciate the nature or
wrongfulness of his conduct; and (4) is the accused currently suffering from a mental disease or
defect to the point that he is unable to understand the nature of the proceedings or to conduct or
cooperate intel igently in the defense?191
The report of the R.C.M. 706 Board may lead to the case’s suspension, dismissal of charges by
the convening authority, administrative separation of the accused from military service, or the
trial of charges by court-martial.192 Although an accused may be found competent to be tried by
court-martial, that determination does not prohibit the accused from claiming the defense of lack
of mental responsibility.193 To prevail on a defense of lack of mental responsibility, the accused
must prove by clear and convincing evidence that at the time of the commission of the acts
constituting the offense, because of a severe mental disease or defect, he was unable to appreciate
the nature and quality or wrongfulness of his acts.194 Regardless of an initial competency
determination, a military judge may order additional examinations at any stage of the proceedings
if the accused’s mental capacity is in question.195
Pretrial and Trial Process
When a convening authority refers charges, the referral triggers a series of steps beginning with
the convening of the court-martial.196 This post-referral process involves both pretrial matters,
including the exchange of evidence, and the actual trial, including the selection of the members of
special and general courts-martial—the equivalent of civilian jurors197—and presentation of
evidence. The process ends with the court-martial’s findings—or verdicts on the referred
charges198—and, if the accused is convicted, sentencing.
Convening the Court-Martial
After referral, the convening authority wil issue an order convening the court-martial. The order
must designate the type of court-martial—general, special, or summary199—and detail the
members (for special or general courts-martial) or presiding officer (for summary courts-
martial).200 The convening order may also specify where the court-martial wil meet.201 For
special and general courts-martial, the military judge and counsel wil be assigned under
regulations issued by the secretaries of each military department.202

191 R.C.M. 706(c)(2).
192 R.C.M. 706(c)(3) (discussion).
193 R.C.M. 916(b)(2).
194 R.C.M. 916(k)(1).
195 R.C.M. 706(c)(4). T he accused’s mental capacity is relevant at all stages of the proceedings, including, but not
limited to, the arraignment, court -martial, and post -trial matters. See R.C.M. 1107.
196 See Arts. 22-24, UCMJ; 10 U.S.C. §§ 822-24; R.C.M. 504.
197 R.C.M. 502(a)(2)(A) (“The members of a court -martial shall determine whether the accused is proved guilty ....”).
198 See R.C.M. 918(a) (“T he general findings of a court -martial state whether the accused is guilty of each charge and
specification.”)
199 See discussion supra page 5 on types of courts-martial and who may convene each type.
200 R.C.M. 504(d).
201 Id.
202 Arts. 26, 27, UCMJ; 10 U.S.C. §§ 826, 827; R.C.M. 503.
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Members
For special and general courts-martial, the convening authority must detail—assign—members to
serve on the court-martial.203 The convening authority must select members who are on active
duty and who, in the convening authority’s opinion, “are best qualified for the duty by reason of
age, education, training, experience, length of service, and judicial temperament.”204 Any
commissioned officer may serve as a member of a court-martial,205 but warrant officers may only
do so if the accused is not a commissioned officer.206 Enlisted servicemembers may not serve
unless the accused is also an enlisted servicemember.207 No accuser, witness for the prosecution,
or individual who served as a preliminary hearing officer or counsel in the same case may serve
as a member.208 If possible, members should not be junior in rank or grade to the accused.209
The number of members a convening authority must detail depends on the type of court-martial
and the nature of the charges against the accused.210 The convening authority must detail at least
the number of members required for a given type of court-martial and has discretion to authorize
a military judge to impanel alternate members.211
General courts-martial typical y consist of eight members,212 with three exceptions. First, in
capital cases (where the accused may be sentenced to death), a general court-martial must consist
of twelve members.213 Second, in non-capital cases, an accused may request trial by a military
judge alone.214 Third, in non-capital cases, a panel may consist of six or seven members if, after
impanelment, members of the panel are excused or chal enged and no alternates are available.215
Special courts-martial consist of four members,216 unless the accused requests trial by a military
judge alone or the case is referred for trial by a military judge alone.217
Military Judges
Military judges preside over general and special courts-martial.218 A military judge must be “[1] a
commissioned officer of the armed forces [2] who is a member of the bar of a Federal court or the

203 R.C.M. 503(a)(1); see also R.C.M. 501(a) (prescribing the composition of general and special courts-martial).
204 Art. 25(e)(2), UCMJ; 10 U.S.C. § 825(e)(2); R.C.M. 502(a)(1).
205 Art. 25(a), UCMJ; 10 U.S.C. § 825(a); R.C.M. 502(a)(1)(A).
206 Art. 25(b), UCMJ; 10 U.S.C. § 825(b); R.C.M. 502(a)(1)(B).
207 Art. 25(c), UCMJ; 10 U.S.C. § 825(c); R.C.M. 502(a)(1)(C). An accused who is an enlisted servicemember has a
right to request a court -martial with membership consisting entirely of officers or at least one-third enlisted members.
Art. 25(c)(2), UCMJ; 10 U.S.C. § 825(c)(2); R.C.M. 503(a)(2).
208 Art. 25(e)(2), UCMJ; 10 U.S.C. § 825(e)(2).
209 Art. 25(e)(1), UCMJ; 10 U.S.C. § 825(e)(1).
210 Arts. 25, 25a, 29, UCMJ; 10 U.S.C. §§ 825, 825a, 829; R.C.M. 501.
211 R.C.M. 501(a)(1)(ii), (a)(1)(B)(ii), (a)(2)(B).
212 Art. 16(b)(1), UCMJ; 10 U.S.C. § 816(b)(1); R.C.M. 501(a)(1)(A)(ii). Before the MJA amendments, both general
and special courts-martial required at least five members in non-capital cases. See 10 U.S.C. § 816 (2000).
213 Art. 25a(a), UCMJ; 10 U.S.C. § 825a(a); R.C.M. 501(a)(1)(B)(i). Before the MJA amendments, general courts-
martial in capital cases required at least twelve members, unless twelve members were not reasonably available. See
10 U.S.C. § 825a (2006).
214 Art. 16(b)(3), UCMJ; 10 U.S.C. § 816(b)(3); R.C.M. 501(a)(1)(A)(iii).
215 Art. 29(c), (d), UCMJ; 10 U.S.C. § 829(c), (d); R.C.M. 501(a)(1)(A)(iv).
216 Art. 16(c)(1), UCMJ; 10 U.S.C. § 816(c)(1); R.C.M. 501(a)(2)(A).
217 Art. 16(c)(2), UCMJ; 10 U.S.C. § 816(c)(2); R.C.M. 501(a)(2)(C), (D).
218 Art. 16(b)-(c), UCMJ; 10 U.S.C. § 816(b)-(c). Any commissioned officer may serve as a summary court -martial.
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highest court of a State and [3] certified to be qualified, by reason of education, training,
experience, and judicial temperament, for duty as a military judge by the Judge Advocate General
of the armed force of which such military judge is a member.”219 Military judges general y must
serve terms of at least three years.220 The Judge Advocate General of each service branch or a
military judge who reports directly to the Judge Advocate General may detail military judges to
serve on general and special courts-martial.221
A military judge may not be an accuser or witness for the prosecution and may not consult with
the members of the court-martial except in the presence of the accused and counsel.222 Before a
court-martial is assembled, the detailing authority may replace a military judge without
explanation.223 Once a court-martial is assembled, a military judge may be removed only for
disqualification or good cause.224 Convening authorities and their staff may not “prepare or
review any report concerning the effectiveness, fitness, or efficiency” of a military judge.225
Counsel
In general and special courts-martial, trial counsel—which serves as the prosecutor226—and
defense counsel wil be detailed to the court-martial under regulations prescribed by the
secretaries of each service branch.227 Trial and defense counsel detailed in general courts-martial
must be judge advocate officers who are “member[s] of the bar of a Federal court or of the
highest court of a State” and approved by the appropriate Judge Advocate General.228 Defense
counsel detailed in special courts-martial must have the same credentials,229 but trial counsel in
special courts-martial may be any commissioned officer “determined to be competent to perform
such duties by the Judge Advocate General.”230
An accused has a right to counsel in general and special, but not summary, courts-martial.231 An
accused may be represented by (1) military counsel detailed to a court-martial; (2) civilian
counsel provided by the accused; or (3) military counsel selected by the accused if that counsel is

Art. 16(d), UCMJ; 10 U.S.C. § 816(d).
219 Art. 26(b), UCMJ; 10 U.S.C. § 826(b); R.C.M. 502(c)(1).
220 R.C.M. 502(c)(3).
221 Art. 26(c)(1), UCMJ; 10 U.S.C. § 826(c)(1); R.C.M. 503(b)(1).
222 Art. 26(d)-(e), UCMJ; 10 U.S.C. § 826(d)-(e).
223 R.C.M. 505(e)(1).
224 R.C.M. 505(e)(2).
225 Art. 26(c)(2), UCMJ; 10 U.S.C. § 826(c)(2).
226 Art. 38(a), UCMJ; 10 U.S.C. § 838(a); R.C.M. 502(d)(4).
227 Art. 27(a)(1), UCMJ; 10 U.S.C. § 827(a)(1); R.C.M. 501(b), 503(c)(1).
228 Art. 27(b)(1), UCMJ; 10 U.S.C. § 827(b); R.C.M. 502(d)(1), (2)(A).
229 Art. 27(c)(1), UCMJ; 10 U.S.C. § 827(c)(1); R.C.M. 502(d)(2)(A).
230 Art. 27(c)(2), UCMJ; 10 U.S.C. § 827(c)(2); R.C.M. 502(d)(1)(B).
231 Art. 38(b)(1), UCMJ; 10 U.S.C § 838(b)(1); R.C.M. 506, 1301(e).
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“reasonably available.”232 If an accused retains civilian counsel, the defense counsel detailed to
the court-martial wil serve as an associate defense counsel unless excused by the accused.233
A person who has previously served in certain roles in a case may not be detailed as trial counsel
or, unless expressly requested by the accused, as defense counsel.234 These roles include (1) the
accuser; (2) an investigating or preliminary hearing officer; (3) a military judge or appel ate
military judge; or (4) a member.235 “No person who has acted for the prosecution may act later in
the same case for the defense, nor may any person who has acted for the defense act later in the
same case for the prosecution.”236
Pretrial Matters
Once the convening authority issues the order convening the court-martial and detailing its
personnel but before the trial begins, the court-martial must address several pretrial matters.
These tasks differ depending on the type of court-martial but general y include preparing
evidence and identifying witnesses. Pretrial activity may also include plea bargaining and an
evaluation of the accused’s mental capacity.237
General and Special Courts-Martial
Before trial by a general or special court-martial, counsel for each side and the court-martial have
the opportunity to obtain witnesses and other evidence and must share information through the
discovery process.238 During this process, trial counsel must provide evidence and information to
the defense, including
 the convening order, charge sheet, and any accompanying papers or
statements;239
 relevant documents, papers, or objects in the trial counsel’s possession;240
 the names and contact information of witnesses;241
 records of the accused’s prior convictions, if any;242

232 Art. 38(b)(2)-(3), UCMJ; 10 U.S.C. § 838(b)(2)-(3). The following persons are, by regulation, not reasonably
available to serve as defense counsel: (1) generals and flag officers; (2) trial or appellate military judges; (3) trial
counsel; (4) appellate defense or government counsel; (5) principal legal advisors to military commands, organizations,
and agencies; (6) instructors and students at service academies; (7) college or university students; and (8) members of
the staffs of the Judge Advocates General. R.C.M. 506(b)(1).
233 Art. 38(b)(4), UCMJ; 10 U.S.C. § 838(b)(4).
234 Art. 27(a)(2), UCMJ; 10 U.S.C. § 827(a)(2); R.C.M. 502(d)(3).
235 Art. 27(a)(2), UCMJ; 10 U.S.C. § 827(a)(2); R.C.M. 502(d)(3).
236 Art. 27(a)(2), UCMJ; 10 U.S.C. § 827(a)(2).
237 For an overview of mental capacity determinations, see the discussion supra in “Mental Capacity.”
238 Art. 46(a), UCMJ; 10 U.S.C. § 846(a) (“ In a case referred for trial by court -martial, the trial counsel, the defense
counsel, and the court -martial shall have equal opportunity to obtain witnesses and other evidence in accordance with
such regulations as the President may prescribe.”); see also R.C.M. 701.
239 R.C.M. 701(a)(1).
240 R.C.M. 701(a)(2).
241 R.C.M. 701(a)(3).
242 R.C.M. 701(a)(4).
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 information trial counsel intends to present at sentencing;243 and
 any evidence favorable to the defense.244
Defense counsel must likewise disclose certain documents and evidence, the names of witnesses,
and the accused’s intent to use certain defenses.245
In addition, both trial and defense counsel may, in exceptional circumstances, depose witnesses to
preserve their testimony.246 An “exceptional circumstance” is one where the witness “is likely to
be unavailable to testify at the time of trial.”247 The convening authority, before referral, or the
military judge, after referral, decides whether to al ow depositions to take place.248
Summary Courts-Martial
Compared to general and special courts-martial, summary courts-martial employ a greatly
simplified procedure.249 A summary court-martial is a non-criminal forum without civilian
analog.250 A single officer (who need not be a lawyer), serves as the trial judge and finder of
fact.251 After convening, the officer serving as the summary court-martial must “examine the
charge sheet, [any associated] papers, and the immediately available personnel records of the
accused.”252 The summary court-martial must report any irregularities in those documents and
may correct the charge sheet or amend the charges and specifications.253
Before trial, the summary court-martial must hold a preliminary proceeding.254 During this
proceeding, the summary court-martial must inform the accused of, among other things, (1) the
nature of the charges; (2) the right to plead guilty or not guilty; (3) the right to examine evidence
and cal witnesses; (4) the maximum sentence the summary court-martial may adjudge; and (5)
the “right to object to trial by summary court-martial.”255
After the preliminary proceeding, the summary court-martial must give the accused “a reasonable
period of time to decide whether to object to trial by summary court-martial.”256 If the accused
objects, the summary court-martial must return the case to the convening authority for assignment

243 R.C.M. 701(a)(5).
244 R.C.M. 701(a)(6).
245 R.C.M. 701(b)
246 Art. 49, UCMJ; 10 U.S.C. § 849; R.C.M. 702.
247 R.C.M. 702(a)(2).
248 R.C.M. 702(b).
249 See R.C.M. 1301(b) (“ T he function of the summary court -martial is to promptly adjudicate minor offenses under a
simple disciplinary proceeding.”).
250 Art. 20, UCMJ; 10 U.S.C. § 820(b); see Mittendorf v. Henry, 425 U.S. 25, 38-42 (describing the differences
between a summary court -martial and civilian criminal proceedings and holding that “ a summary court -martial is not a
‘criminal prosecution’ for purposes of the Sixth Amendment”).
251 Art. 16, UCMJ, 10 U.S.C. § 816(d).
252 R.C.M. 1304(a)(1).
253 R.C.M. 1304(a)(2)-(4).
254 R.C.M. 1304(b)(1).
255 R.C.M. 1304(b)(1).
256 R.C.M. 1304(b)(2)(A).
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to a special or general court-martial.257 If the accused does not object, the summary court-martial
trial may proceed.258
Plea Agreements
At any point before the announcement of the court-martial’s findings, an accused and a
convening authority may enter into a plea agreement.259 The parties can agree to dispose of one or
more charges or specifications or to limits on the sentence imposed for one or more charges or
specifications.260 For example, an accused could promise to plead guilty to one charge in
exchange for a promise from the convening authority not to refer other charges.261 Likewise, a
convening authority could agree to refer charges to a specific type of court-martial or to refer a
potential y capital case as non-capital.262 The accused must freely and voluntarily agree to al plea
agreement provisions, and a plea agreement cannot deprive an accused of certain rights, including
the rights to counsel and due process.263 Once a general or special court-martial has convened, a
plea agreement is not binding unless approved by the military judge..264 The military judge may
not, however, participate in plea agreement discussions.265
Trial Procedure
Once al pretrial matters have concluded, and absent a plea agreement, the case proceeds to trial.
Trials by court-martial are general y public266 and begin with the formal arraignment of the
accused before proceeding to the presentation of evidence. They conclude with the announcement
of findings and adjudging of sentences. As with the pretrial process, trial procedures vary between
types of courts-martial.
Summary Courts-Martial
A trial by summary court-martial begins with the arraignment of the accused.267 The summary
court-martial reads the charges and specifications to the accused, considers motions to dismiss or
for other relief, and asks the accused to plead to each specification and charge.268 An accused may
plead not guilty or guilty or may refuse to plead and may change any plea at any time before the
court-martial announces its findings.269 Once the accused pleads to each charge and specification,
the summary court-martial cal s and examines witnesses and considers evidence.270 In particular,

257 R.C.M. 1304(b)(2)(A).
258 R.C.M. 1304(b)(2)(A).
259 Art. 53a, UCMJ; 10 U.S.C. § 853a; R.C.M. 705(a).
260 Art. 53a(1), UCMJ; 10 U.S.C. § 853a(1); R.C.M. 705(b).
261 R.C.M. 705(b).
262 R.C.M. 705(b).
263 R.C.M. 705(c)(1).
264 See Art. 53a(b)-(d), UCMJ; 10 U.S.C. § 853a(b)-(d).
265 Art. 53a(a)(2), UCMJ; 10 U.S.C. § 853a(a)(2).
266 R.C.M. 806(a).
267 R.C.M. 1304(b)(2)(B).
268 R.C.M. 1304(b)(2)(B)-(D).
269 R.C.M. 1304(b)(2)(D).
270 R.C.M. 1304(b)(2)(E).
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the summary court-martial must “obtain evidence which tends to disprove the accused’s guilt or
establishes extenuating circumstances.”271
General and Special Courts-Martial
A trial by a general or special court-martial begins with an opening session.272 During this
session, the military judge considers any preliminary motions and must inform the accused of the
accused’s right to counsel.273 The accused chooses whether to be represented by counsel and
whether to be tried before members or a military judge alone.274 The military judge then arraigns
the accused by reading the charges and specifications and asking the accused to plead to each
charge or specification.275 An accused may plead (1) guilty of the charged offense; (2) not guilty
of the charged offense, but guilty of a lesser included offense; (3) guilty with exceptions or
substitutions of the charges; or (4) not guilty.276
If the accused has elected to be tried by a court-martial consisting of members (instead of before a
military judge alone), the military judge begins assembling the members.277 Trial counsel and the
accused may question and challenge the members, or request that members be excused from the
court-martial.278 This process is equivalent to voir dire, or the selection of a jury in civilian
trials.279 Chal enges may take two forms: (1) chal enges for cause, such as bias, which the
military judge decides; and (2) peremptory chal enges, which require no cause and the military
judge does not review.280 Each side may chal enge an unlimited number of members for cause but
may exercise only one peremptory chal enge.281 If a judge’s excusal of a member based on a
chal enge reduces the court-martial to fewer than the number of required members, the convening
authority must detail additional members to the court-martial unless it is not possible to do so.282
After the trial counsel and accused have exercised their chal enges, the military judge randomly
selects the required number of members to form the court-martial and administers an oath to
impanel the members and any alternates.283
Following the impaneling of the members, trial counsel and the accused each present their
case.284 Each side may present evidence and examine witnesses, subject to the military rules of
evidence.285 Witnesses must be examined under oath286 and may testify remotely under

271 R.C.M. 1304(b)(2)(E)(iv).
272 R.C.M. 901.
273 R.C.M. 901(d)(4).
274 R.C.M. 901(d)(4), 903.
275 R.C.M. 904.
276 R.C.M. 910(a); see also Art. 45, UCMJ; 10 U.S.C. § 845.
277 R.C.M. 911.
278 Art. 41, UCMJ; 10 U.S.C. § 841; R.C.M. 912.
279 See FED. R. CRIM. P. 24.
280 Art. 41, UCMJ; 10 U.S.C. § 841; R.C.M. 912.
281 Art. 41, UCMJ; 10 U.S.C. § 841; R.C.M. 912.
282 Arts. 29(d), 41, UCMJ; 10 U.S.C. §§ 829(d), 841.
283 Arts. 29(b), (d), 41-42, UCMJ; 10 U.S.C. §§ 829(b)-(d), 841-42.
284 R.C.M. 913.
285 R.C.M. 912-13; see supra note 35.
286 Art. 42(b), UCMJ; 10 U.S.C. § 842(b).
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procedures set by the military judge.287 No convening authority or commanding officer may
attempt to prevent or deter a witness from testifying.288
Once the prosecution has presented its case, and again after the close of evidence, the military
judge may enter a finding of not guilty for any charge not supported by sufficient evidence.289 In
addition, the military judge may declare a mistrial if “manifestly necessary in the interests of
justice” because the fairness of the trial is in doubt.290
Findings
After the presentation of evidence and, in general and special courts martial, the military judge
has ruled on al questions of law,291 the court-martial deliberates and decides whether the accused
is guilty of each charge and specification.292 These conclusions are cal ed findings.293 For each
charge or specification, the court-martial can find an accused (1) guilty, (2) guilty of a lesser
charge, (3) not guilty only by reason of lack of mental responsibility, or (4) not guilty.294
Who determines the findings depends on the type of court-martial. For trials by summary courts-
martial, the officer serving as the summary court-martial determines the findings.295 For trials by
general and special courts-martial consisting of a military judge alone, the military judge
determines and announces the findings.296 For trials by general and special courts-martial
consisting of both members and a military judge, the members meet in closed session to vote on
each finding.297 At least three-fourths298 of members must vote to find an accused guilty of a
charge or specification,299 but in capital cases, a court-martial may not impose the death penalty
absent a unanimous conviction.300 Any vote that does not meet the three-fourths threshold results
in a finding of not guilty.301
Sentencing
If the court-martial finds the accused guilty of a charge or specification, it must adjudge a
sentence for that finding. The prosecution and defense have the opportunity to present arguments
regarding the appropriate sentence, including aggravating or mitigating evidence.302 In summary

287 R.C.M. 914A-14B.
288 Art. 37(a)(2), UCMJ; 10 U.S.C. § 837(a)(2).
289 R.C.M. 917.
290 R.C.M. 915(a).
291 Art. 51(b), UCMJ; 10 U.S.C. § 851(b).
292 R.C.M. 921.
293 R.C.M. 918(a).
294 R.C.M. 918(a)(1)-(2).
295 R.C.M. 1304(b)(2)(G).
296 Art. 51(d), UCMJ; 10 U.S.C. § 851(d); R.C.M. 922(b).
297 Art. 51(a), UCMJ; 10 U.S.C. § 851(a); R.C.M. 921.
298 Before the MJA amendments, two-thirds of members had to agree to find an accused guilty of a charge or
specification, except for cases where the death penalty was mandatory, which r equired a unanimous vote. See
10 U.S.C. § 852 (2012).
299 Art. 52(a)(3), UCMJ; 10 U.S.C. § 852(a)(3); R.C.M. 921(c)(2).
300 Art. 52(b)(2), UCMJ; 10 U.S.C. § 852(b)(2).
301 R.C.M. 921(c)(3).
302 See R.C.M. 1001(a)(1).
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courts-martial, the officer serving as the summary court-martial adjudges the sentence.303 In
general or special courts-martial before a military judge alone, the military judge adjudges the
sentence.304 For general and special courts-martials with members, the accused may elect to be
sentenced by the members or the military judge, except members must adjudge sentences for al
offenses for which the court-martial could impose the death penalty.305 Three-fourths of members
must agree to any sentence except death, which requires unanimous agreement.306
A court-martial has wide discretion to adjudge sentences.307 Unless the UCMJ or the MCM
impose mandatory minimum sentences, the court-martial can adjudge “any punishment
authorized ..., including the maximum punishment or any lesser punishment, or may adjudge a
sentence of no punishment.”308 The sentence must be “sufficient, but not greater than necessary,
to promote justice and to maintain good order and discipline in the armed forces.”309
Post-Trial Review
Following the verdict and sentencing in a general or special court-martial, the military judge must
enter into the record a “Statement of Trial Results” (STR), including each plea entered by the
accused, the court-martial findings, any sentence imposed, and any other information required by
the President.310 The military judge then forwards the STR, along with statements by the accused
and victim, for post-trial review by the convening authority.311 As amended in 2013312 and again
by the MJA,313 the UCMJ permits the convening authority to act on the findings of a special or
general court-martial only in certain cases. The convening authority is not authorized to act on the
court-martial findings in cases in which (1) the authorized maximum confinement exceeds two
years; (2) the sentence includes a dismissal or a dishonorable or bad-conduct discharge; (3) the
confinement for al offenses running consecutively is more than six months; or (4) the accused
was convicted of one of the sexual offenses listed in Articles 120(a)-(b), 120b, 125, or any other
offense specified by the Secretary of Defense.314
Upon review of the record of trial and the SJA’s recommendation and taking into consideration
statements submitted by the accused or a victim,315 the convening authority may, in applicable
cases, suspend al or part of the sentence, disapprove a finding or conviction, or lower the
sentence. The convening authority may not reduce, commute, or suspend (1) a sentence of
confinement exceeding six months; (2) a sentence of dismissal, dishonorable discharge, or bad-

303 Art. 53(b)(2), UCMJ; 10 U.S.C. § 853(b)(2).
304 Art. 53(b)(1)(A), UCMJ; 10 U.S.C. § 853(b)(1)(A).
305 Art. 25(d)(1)-(2), UCMJ; 10 U.S.C. § 825(d)(1)-(2).
306 Art. 52(b)(2), UCMJ; 10 U.S.C. § 852(b)(2).
307 R.C.M. 1002(a).
308 R.C.M. 1002(a). For limits on the types of punishments that summary and special courts-martial may impose, see
the “T ypes of Courts-Martial” section of this report.
309 R.C.M. 1002(f).
310 Art. 60, UCMJ; 10 U.S.C. § 860.
311 Id.
312 National Defense Authorization Act for FY 2014, Pub. L. No. 113-66, title XVII, § 1702, 127 Stat. 672, 954 (Dec.
26, 2013), codified at 10 U.S.C. § 860 (2013).
313 Pub. L. No. 114-328, div. E, § 5322, 130 Stat. 2924 (Dec. 23, 2016), codified at 10 U.S.C. § 860a.
314 Art. 60a, UCMJ; 10 U.S.C. § 860a; R.C.M. 1107.
315 Art. 60a(e), UCMJ; 10 U.S.C. § 860a(e).
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conduct discharge; or (3) a sentence of death.316 Sentences of dismissal, discharge, or
confinement are subject to suspension only if the military judge recommends that the sentence be
suspended based on sufficient supporting facts or the accused substantial y cooperating in the
investigation or prosecution of another person.317 The convening authority may not suspend a
mandatory minimum sentence or suspend a sentence in excess of the suspension recommended
by the military judge.318 The convening authority may not increase the sentence or submit
findings of not guilty for rehearing.319 Once the convening authority takes action on the case, it is
returned to the military judge for entry of final judgment,320 and the conviction is ripe for an
appeal.
Al court-martial convictions not reviewed by the service appel ate courts321 may, upon timely
application by the accused, be reviewed by the Judge Advocate General.322 “[T]he Judge
Advocate General may modify or set aside, in whole or in part, the findings and sentence in a
court-martial,” or may forward the case for review by the court of criminal appeals.323
Appellate Review
Convictions by a special or general court-martial are subject to an automatic324 appeal to a service
Court of Criminal Appeals if the sentence includes confinement for two years or more, a bad-
conduct or dishonorable discharge, death, or a dismissal in the case of a commissioned officer,
cadet, or midshipman.325 Appeal is mandatory and cannot be waived when the sentence includes
death.326 Article 66 of the UCMJ, empowers military courts of criminal appeal to review court-
martial cases not only for legal sufficiency but also for factual sufficiency,327 including a potential
assessment of the credibility of witnesses, a power that does not exist in civilian courts. 328 If the
service court of criminal appeals affirms the conviction, the appel ant may request review by the

316 Art. 60a(c), UCMJ; 10 U.S.C. § 860a(c).
317 Art. 60a(d), UCMJ; 10 U.S.C. § 860a(d).
318 Art. 60a(c)(2), UCMJ; 10 U.S.C. § 860a(c)(2).
319 Art. 60b, UCMJ; 10 U.S.C. § 860b.
320 Art. 60c, UCMJ; 10 U.S.C. § 860c. In the case of a summary court -martial, the results are final upon the decision of
the convening authority. R.C.M. 1111.
321 Art. 66, UCMJ; 10 U.S.C. § 866. T here 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.
322 Art. 69, UCMJ, 10 U.S.C. § 869, R.C.M. 1201.
323 Id.
324 Military appellate courts are required to review cases over which they have jurisdiction unless the appellant waives
his or her right to appeal.
325 Art. 66, UCMJ; 10 U.S.C. § 866.
326 R.C.M. 1115.
327 Art. 66(d), UCMJ; 10 U.S.C. § 866(d). T he standard for factual sufficiency review asks whether, “after weighing all
of the evidence in the record of trial and making allowances for not personally having heard and seen the witnesses, the
members of the Court of Military Review are themselves convinced of the accused’s guilt beyond a reasonable doubt.”
United States v. T urner, 25 M.J. 324, 325 (C.M.A. 1987).
328 See, e.g. United States v. Baker, 28 M.J. 121, 122 (C.M.A. 1989) (noting that Article 66, UCMJ “gives powers to a
Court of Military Review [now called Courts of Criminal Appeal] that are unparalleled among civilian appellate
tribunals. It not only considers issues of law but also makes factual findings and determines sentence
appropriateness.”).
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Court of Appeals for the Armed Forces (CAAF)329 and ultimately the U.S. Supreme Court.330
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.331
The Court does not have jurisdiction to review a denial of discretionary review by the CAAF,332
nor does it have jurisdiction to consider denials of petitions for extraordinary relief.333
Servicemembers whose petitions for review or extraordinary relief are denied by the CAAF may
seek additional review only through collateral means by, for example, petitioning for habeas
corpus to an Article III court.334 A collateral appeal to an Art. III court also could provide an
alternate avenue for Supreme Court review.
Selected Procedural Safeguards
The following table provides examples of constitutional safeguards and compares how they apply
in federal criminal courts and military general courts-martial. The table cites relevant federal rules
and or court decisions, as wel as provisions of the UCMJ and applicable rules, but makes no
effort to provide an exhaustive list of al procedural authorities.
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 plea,
Innocence
plea, a plea of not guilty wil be entered.
a plea of not guilty wil be entered. R.C.M.
“The principle that there
Fed. R. Crim. P. 11(a).
910(b).
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 the instructed that the “accused must be
accused is the
evidence beyond a reasonable doubt.
presumed to be innocent until the
undoubted law,
Taylor v. Kentucky, 436 U.S. 478 (1978).
accused’s guilt is established by legal and
axiomatic and
Defendant is entitled to appear in court
competent evidence beyond a reasonable
elementary, and its
without unnecessary physical restraints or
doubt.”
enforcement lies at the
other indicia of guilt, such as appearing in
R.C.M. 920(e).
foundation of the
prison uniform, that may be prejudicial to
administration of our
The accused shal be properly attired in
jury.
criminal law.”
uniform with grade insignia and any
See Holbrook v. Flynn, 475 U.S. 560
decorations to which entitled. Physical
Coffin v. United States,
(1986).
restraint shal not be imposed unless
156 U.S. 432, 453
prescribed by the military judge.
(1895).
R.C.M. 804(e).

329 Art. 67, UCMJ; 10 U.S.C. § 867. T he Court of Appeals for the Armed Forces (CAAF) is a civilian court composed
of five civilian judges appointed by the President. Art. 142, UCMJ, 10 U.S.C. § 942.
330 T he U.S. Supreme Court did not have jurisdiction over decisions of the CAAF until Congress granted it in 1984.
Military Justice Act of 1983, Pub. L. No. 98-209 § 10(a)(1), 97 Stat. 1393, codified at 28 U.S.C. § 1259.
331 28 U.S.C. § 1259.
332 Art. 67a, UCMJ; 10 U.S.C. § 867a.
333 Id.
334 See Burns v. Wilson, 346 U.S. 137, 139–40 (1953) (noting that “because of the peculiar relationship between the
civil and military law,” civilian courts’ consideration of military habeas cases “has always been more narrow than in
civil cases”) (citing Hiatt v. Brown, 339 U.S. 103, 70 (1950)).
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Constitutional
Safeguards
Federal Court
General Courts-Martial
Right to Remain
Incriminating statements made by
Coerced confessions or confessions made
Silent
defendant under duress or without prior
without statutory equivalent of Miranda
“No person ... shal be
Miranda warning are inadmissible as
warning are not admissible as evidence.
compel ed in any
evidence of guilt in a criminal trial. Miranda Art. 31, UCMJ, 10 U.S.C. § 831.
criminal case to be a
v. Arizona, 384 U.S. 436 (1966).
The prosecutor must notify the defense of
witness against himself
Before a jury is al owed to hear evidence
any incriminating statements made by the
.... ”
of a defendant’s confession, the court
accused that are relevant to the case prior
Amendment V.
must determine that it was voluntarily
to the arraignment. Motions to suppress
given.
such statements must be made prior to
18 U.S.C. § 3501.
pleading.
Mil. R. Evid. 304.
Freedom from
Evidence, including derivative evidence,
“Evidence obtained as a result of an
Unreasonable
gained through unreasonable searches and
unlawful search or seizure . . is inadmissible
Searches & Seizures
seizures may be excluded in court. Boyd v.
against the accused” unless certain
“The right of the people
United States, 116 U.S. 616 (1886);
exceptions apply.
to be secure ... against
Nardone v. United States, 308 U.S. 338
Mil. R. Evid. 311.
unreasonable searches
(1939); Fed. R. Crim. P. 41.
“Authorization to search” may be oral or
and seizures, shal not be
A search warrant issued by a magistrate
written, and may be issued by a military
violated; no Warrants
on a showing of probable cause is
judge or an officer in command of the area
shal issue, but upon
general y required for law enforcement
to be searched, or if the area is not under
probable cause. ..”
agents to conduct a search of an area
military control, with authority over
Amendment IV.
where the subject has a reasonable
persons subject to military law or the law
expectation of privacy, including searches
of war. It must be based on probable cause.
and seizures of telephone or other
communications and emissions of heat and
Mil. R. Evid. 315.
other phenomena detectable with means
Interception of wire and oral
other than human senses. Katz v. United
communications within the United States
States, 389 U.S. 347 (1967).
requires judicial application in accordance
Evidence resulting from overseas searches
with federal law.
of American property by foreign officials is
R.C.M. 703A; Mil. R. Evid. 317.
admissible unless foreign police conduct
A search conducted by foreign officials is
shocks judicial conscience or participation
unlawful only if the accused is subject to
by U.S. agents is so substantial as to
“gross and brutal maltreatment.”
render the action that of the United
Mil. R. Evid. 311(b).
States. United States v. Barona, 56 F.3d
1087 (9th Cir. 1995).
Assistance of
Defendants in criminal cases have the right
The defendant has a right to military
Effective Counsel
to representation by an attorney at al
counsel at government expense. The
“In al criminal
stages of prosecution. The defendant may
defendant may choose counsel, if that
prosecutions, the
hire an attorney or, if indigent, have
attorney is reasonably available, and may
accused shal enjoy the
counsel appointed at the government’s
hire a civilian attorney in addition to
right . . to have the
expense. If two or more co-defendants are military counsel.
Assistance of Counsel
represented by one attorney, the court
Art 38, UCMJ, 10 U.S.C. § 838.
for his defense.”
must inquire as to whether a conflict of
interest exists.
Appointed counsel must be certified as
Amendment VI.
qualified and may not be someone who has
Fed. R. Crim. P. 44.
taken any part in the investigation or
Conversations between attorneys and
prosecution, unless explicitly requested by
clients are privileged. Fed. R. Evid. 502.
the defendant.
Procedures for ensuring adequate
Art. 27, UCMJ, 10 U.S.C. § 827.
representation of defendants are outlined
The attorney-client privilege is honored.
at 18 U.S.C. §§ 3005 (capital cases) and
Mil. R. Evid. 502.
3006A.
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Constitutional
Safeguards
Federal Court
General Courts-Martial
Right to Indictment
When the accused is faces an infamous
The right to indictment by grand jury is
and Presentment
punishment if convicted, he has the right
explicitly excluded in “cases arising in the
“No person shal be held
to insist that he not be tried except on the land or naval forces.”
to answer for a capital,
accusation of a grand jury. Ex parte
Amendment V.
or otherwise infamous
Wilson, 114 U.S. 417 (1885); Fed. R. Crim.
Whenever an offense is al eged, the
crime, unless on a
P. 7.
commander is responsible for initiating a
presentment or
Jurors must be selected from a fair cross
preliminary inquiry and deciding how to
indictment of a Grand
section of the community; otherwise, an
dispose of the offense. R.C.M. 303-06.
Jury, except in cases
accused can chal enge the indictment. 28
arising in the land or
U.S.C. §§1861-1878
naval forces, or in the
Once an indictment is given, its scope may
Militia, when in actual
not be increased. Amendments to an
service in time of War
indictment must undergo further grand
or public danger.... ”
jury process
Amendment V.
Ex parte Bain, 121 U.S. 1 (1887).
Right to Written
Defendant has a right to be informed of
Charges and specifications must be signed
Statement of
the nature of the charge with sufficiently
under oath and made known to the
Charges
reasonable certainty to al ow for
accused as soon as practicable. Art. 30,
“In al criminal
preparation of defense.
UCMJ, 10 U.S.C. § 830.
prosecutions, the
Cook v. United States, 138 U.S. 157
accused shal enjoy the
(1891).
right ... to be informed
of the nature and cause
of the accusation ....”
Amendment VI.
Right to be Present
“The language, history, and logic of Rule
The presence of the accused is required
at Trial
43 support a straightforward
during arraignment, at the plea, and at
The Confrontation
interpretation that prohibits the trial in
every stage of the court-martial unless the
Clause of Amendment VI absentia of a defendant who is not present
accused waives the right by voluntarily
guarantees the accused’s
at the beginning of trial.”
absenting him or herself from the
right to be present in the Crosby v. United States, 506 U.S. 255, 262 proceedings after the arraignment or by
courtroom at every
(1993); Fed. R. Crim. P. 43.
persisting in conduct that justifies the trial
stage of his trial.
judge in ordering the removal of the
When the defendant knowingly absents
accused from the proceedings.
Il inois v. Al en, 397 U.S.
himself from court during trial, court may
337 (1970).
“proceed with trial in like manner and
R.C.M. 804.
with like effect as if he were present.”
Diaz v. United States, 223 U.S. 442, 455
(1912).
Prohibition Against
Congress general y may not pass a law
Courts-martial wil not enforce an ex post
Ex Post Facto Crimes
punishing conduct that was not a crime
facto law, including increasing amount of
“No . . ex post facto Law
when perpetrated, increasing the possible
pay to be forfeited for specific crimes.
shal be passed.”
sentence for a crime, or reducing the
United States. v. Gorski, 47 M.J. 370
government’s evidentiary burden for a
Art. I, § 9, cl. 3.
(C.A.A.F. 1997).
crime.
Calder v. Bul , 3 Dal . (3 U.S.) 386 (1798);
Ex Parte Garland, 71 U.S. 333 (1867).
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Constitutional
Safeguards
Federal Court
General Courts-Martial
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 U.S. 684, 688-89 (1949).
“[N]or shal any person
evidence is presented. If the trial is
Art. 44, UCMJ prohibits double jeopardy
be subject for the same
terminated after jeopardy has attached, a
(cal ed “former jeopardy”), provides for
offence to be twice put
second trial may be barred in a court
jeopardy to attach after the impanelment of
in jeopardy of life or
under the same sovereign, particularly
members, or in a court-martial by judge
limb ....”
where it is prosecutorial conduct that
only, after the introduction of evidence.
brings about the termination of the trial.
Amendment V.
10 U.S.C. § 844.
Il inois v. Somervil e, 410 U.S. 458 (1973).
Subject to “dual
General court-martial proceeding is
sovereign” doctrine, that
considered a federal trial for double
is, federal and state
jeopardy purposes. Former jeopardy does
courts may prosecute an
not result from charges brought in state or
individual for the same
foreign courts, although court-martial in
conduct without
such cases is disfavored.
violating the clause.
United States v. Stokes, 12 M.J. 229 (C.M.A.
United States v. Gamble,
1982).
139 S. Ct. 1960 (2019).
Once military authorities have turned
servicemember 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.
Speedy & Public Trial
Trial must begin within seventy days of
In general, accused must be brought to trial
“In al criminal
indictment or original appearance before
within 120 days of the preferral of charges
prosecutions, the
court.
or the imposition of restraint, whichever
accused shal enjoy the
18 U.S.C. § 3161.
date is earliest.
right to a speedy and
Closure of the courtroom during trial
R.C.M. 707(a).
public trial,.... ”
proceedings is justified only if (1) the
The right to a public trial applies in courts-
Amendment VI.
proponent of closure advances an
martial but is not absolute.
overriding interest likely to be prejudiced;
R.C.M. 806.
(2) the closure is no broader than
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.
information if the prosecution
demonstrates an overriding need to do so
See Wal er v. Georgia, 467 U.S. 39, 48
and the closure is no broader than
(1984).
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
Due Process requires
burden of presenting evidence sufficient to
establish guilt is upon the government and
the prosecution to prove prove guilt beyond a reasonable doubt.
that any reasonable doubt must be
the defendant guilty of
Cool v. United States, 409 U.S. 100
resolved in favor of the defendant.
each element of a crime
(1978).
R.C.M. 920(e).
beyond a reasonable
doubt.
In re Winship, 397 U.S.
358 (1970).
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Constitutional
Safeguards
Federal Court
General Courts-Martial
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 incriminating
“No person . . shal be
guilt may be inferred from the defendant’s
questions. Art. 31(a) UCMJ, 10 U.S.C.
compel ed in any
refusal to testify.
§ 831(a).
criminal case to be a
Griffin v. California, 380 U.S. 609 (1965).
Defendant may not be compel ed to give
witness against
Witnesses may not be compel ed to give
testimony that is immaterial or potential y
himself….”
testimony that may be incriminating unless
degrading. Art. 31(c), UCMJ, 10 U.S.C.
Amendment V.
given immunity for that testimony.
§ 831(c).
18 U.S.C. § 6002.
No adverse inference is to be drawn from
a defendant’s refusal to answer any
questions or testify at court-martial.
Mil. R. Evid. 301(f).
Witnesses may not be compel ed 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.
Right to Examine or
Rules of Evidence prohibit general y the
Hearsay rules apply as in federal court.
Have Examined
introduction at trial of statements made
Mil. R. Evid. 801-807
Adverse Witnesses
out of court to prove the truth of the
In capital cases, sworn depositions may not
“In al criminal
matter stated unless the declarant is
be used in lieu of witness, unless court-
prosecutions, the
available for cross-examination at trial
martial is treated as non-capital or it is
accused shal enjoy the
(hearsay rule).
introduced by the defense.
right . . to be confronted
Fed. R. Evid. 801-807
with the witnesses
Art. 49, UCMJ, 10 U.S.C. § 849.
The government is required to disclose to
against him ....”
defendant any relevant evidence in its
Amendment VI.
possession or that may become known
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.
“In al criminal
appear.
R.C.M. 703.
prosecutions, the
Fed. R. Crim. P. Rule 17.
Process to compel witnesses in court-
accused shal enjoy the
martial cases is to be similar to the process
right . . to have
used in federal courts.
compulsory process for
obtaining witnesses in his
Art. 46, UCMJ, 10 U.S.C. § 846.
favor ....”
Amendment VI.
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Constitutional
Safeguards
Federal Court
General Courts-Martial
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
“The judicial Power of
ensure trials are decided impartial y,
convening authority may not prepare or
the United States, shal
without the “potential domination by
review any report concerning the
be vested in one
other branches of government.”
performance or effectiveness of the military
supreme Court, and in . .
United States v. Wil , 449 U.S. 200, 217-18 judge.
inferior courts .... The
(1980).
Art. 26, UCMJ, 10 U.S.C. § 826.
Judges . . shal hold their
Judges with a pecuniary interest in the
Article 37, UCMJ, prohibits unlawful
Offices during good
outcome of a case or other conflicts of
command influence of courts-martial
Behaviour, and shal ...
interest are disqualified and must recuse
through admonishment, censure, or
receive for their
themselves.
reprimand of its members by the convening
Services, a
authority or commanding officer, or any
Compensation, which
28 U.S.C. § 455.
unlawful attempt by a person subject to the
shal not be diminished
UCMJ to coerce or influence the action of
during their Continuance
a court-martial or convening authority.
in Office.”
Art. 37, UCMJ, 10 U.S.C. § 837.
Article III § 1.
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.
“The Trial of al Crimes,
community.
Ex Parte Quirin, 317 U.S. 1, 39-40 (1942)
except in Cases of
Taylor v. Louisiana, 419 U.S. 522 (1975).
(dicta).
Impeachment, shal be by There must further be measures to ensure However, “Congress has provided for trial
Jury....”
individual jurors selected are not biased
by members at a court-martial.”
Art III § 2 cl. 3.
(i.e., the voir dire process).
United States v. Witham, 47 MJ 297, 301
“In al criminal
Lewis v. United States, 146 U.S. 370
(1997); Art. 25, UCMJ, 10 U.S.C. § 825.
prosecutions, the
(1892); see Fed. R. Crim. P. 24
The Sixth Amendment requirement that
accused shal enjoy the
(peremptory chal enges).
the jury be impartial applies to court-
right to a . . trial, by an
The trial must be conducted in a manner
martial members and covers not only the
impartial jury of the
designed to avoid exposure of the jury to
selection of individual jurors, but also their
state ....”
prejudicial material or undue influence. If
conduct during the trial proceedings and
Amendment VI.
the locality of the trial has been so
the subsequent deliberations.
saturated with publicity about a case that
United States v. Lambert, 55 M.J. 293
it is impossible to assure jurors wil not be
(C.A.A.F. 2001).
affected by prejudice, the defendant is
entitled to a change of venue.
The absence of a right to trial by jury
precludes criminal trial of civilians by court-
Irvin v. Dowd, 366 U.S. 717 (1961).
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
Original y, the writ of habeas corpus
The writ of habeas corpus provides the
Independent
permitted col ateral attack upon a
primary means by which those sentenced
Reviewing Authority
prisoner’s conviction only if the sentencing
by military court, having exhausted military
“The Privilege of the
court lacked subject matter jurisdiction. It
appeals, can chal enge a conviction or
Writ of Habeas Corpus
later evolved into an avenue for the
sentence in a civilian court. The scope of
shal not be suspended,
chal enge of federal and state convictions
matters that a court wil address is
unless when in Cases of
on other due process grounds, to
narrower than chal enges of federal or
Rebel ion or Invasion the
determine whether a prisoner’s detention
state convictions.
public Safety may require
is contrary to the Constitution or laws or
Burns v. Wilson, 346 U.S. 137 (1953).
it.”
treaties of the United States.
However, Congress created a civilian
Article I § 9 cl. 2.
28 U.S.C. §§ 2241-2255
court, the Court of Appeals for the Armed
Forces, to review military cases. 10 U.S.C.
§ 867.
Congressional Research Service

32

Military Courts-Martial Under the Military Justice Act of 2016

Protection Against
The death penalty is not per se
Death may only be adjudged for certain
Excessive Penalties
unconstitutional, but its discriminatory and crimes where the defendant is found guilty
“Excessive bail shal not
arbitrary imposition may be, and the death
by unanimous vote of 12 court-martial
be required, nor
penalty may not be automatic.
members. Prior to arraignment, the trial
excessive fines imposed,
See Gregg v. Georgia, 428 U.S. 153 (1976); counsel must give the defense written
nor cruel and unusual
18 U.S.C. § 3592 (mitigating /aggravating
notice of aggravating factors the
punishments inflicted.”
circumstances).
prosecution intends to prove.
Amendment VIII.
When the death penalty may be imposed,
R.C.M.1004.
the defendant must be provided a list of

potential jurors and witnesses, unless the
court finds that such action might
“jeopardize the life or safety of any
person.”
18 U.S.C. § 3432.
A special hearing is held to determine
whether the death sentence is warranted.
18 U.S.C. § 3593.

Author Information

Jennifer K. Elsea
Jonathan M. Gaffney
Legislative Attorney
Legislative Attorney

Disclaimer
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Congressional Research Service
R46503 · VERSION 1 · NEW
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