Comparison of Procedural Rules in Criminal Proceedings

Comparison of Procedural Rules in Criminal Proceedings

M
emorandum
July 25, 2006

TO:
House Armed Services Committee
Attention: Lorry Fenner

FROM:
Jennifer K. Elsea
Legislative Attorney
American Law Division

SUBJECT: Comparison of Procedural Rules in Criminal Proceedings

The attached document, a chart entitled “Comparison of Selected Procedural Rights in
Criminal Tribunals,” is provided in response to your request for a new version of the chart
from CRS Report RL31600, The Department of Defense Rules for Military Commissions:
Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform
Code of Military Justice. In addition to columns comparing the rules for courts-martial and
for military commissions as presently established by the Department of Defense Military
Commission Order No. 1, the chart provides information regarding the procedural rules in
selected international tribunals. These include the International Military Tribunal (IMT)
established by the Allies to try European Axis war crimes after World War II, as well as the
more recent “ad hoc” tribunals established by the United Nations Security Council to try war
crimes that occurred during the conflicts in the former Yugoslavia and Rwanda.

The following sources and abbreviations are used:

M.C.M.: Manual for Courts-Martial, 2002 ed.
R.C.M.: Rules for Courts-for Courts-Martial, M.C.M. Part II.
Mil. R. Evid.: Military Rules of Evidence, M.C.M. Part III.
M.C.O. No. 1: Department of Defense Military Commission Order Number 1, Procedures for
Trials by Military Commissions of Certain Non-United States Citizens in the War Against
Terrorism (August 31, 2005), available online at
[http://www.defenselink.mil/news/Sep2005/d20050902order.pdf].
M.C.I.: Military Commission Instruction, issued by the Department of Defense General
Counsel, available online at [http://www.defenselink.mil/
news/Aug2004/commissions_instructions.html].
IMT: International Military Tribunal (Nuremberg), created pursuant to the London
Agreement of August 8, 1945. The agreement, as well as the tribunal’s constitution (“IMT
Charter”) and rules of procedure are available online at the Avalon Project at Yale
University, [http://www.yale.edu/lawweb/avalon/imt/proc/v1menu.htm]. The Opinion and

Congressional Research Service Washington, D.C. 20540-7000

ΧΡΣ−2

Judgment of the IMT is available at
[http://www.yale.edu/lawweb/avalon/imt/proc/judcont.htm].
ICTY: International Criminal Tribunal for the former Yugoslavia, created by UN Security
Council Resolution 827 (May 25,1993). Its statute (ICTY Stat.) and procedural rules (ICTY
Rule) are available at [http://www.un.org/icty/legaldoc-e/index.htm].
ICTR: International Criminal Tribunal for Rwanda, created by UN Security Council
Resolution 955 (Nov. 8,1994). Its statute (ICTR Stat.) and procedural rules (ICTR Rule) are
available at [http://69.94.11.53/default.htm].

link to page 4 link to page 4 link to page 4 link to page 5 link to page 6 link to page 8 link to page 8 link to page 9 link to page 9 link to page 10 link to page 11 link to page 12 link to page 13 link to page 14 link to page 15 link to page 16 link to page 17 link to page 18 link to page 19 Comparison of Selected Procedural Rights in Criminal Tribunals

Comparison of Selected Procedural Rights in Criminal Tribunals............................................................................................................. 2
Presumption of Innocence................................................................................................................................................................... 2
Right to Remain Silent........................................................................................................................................................................ 2
Freedom from Unreasonable Searches & Seizures............................................................................................................................. 3
Assistance of Effective Counsel ......................................................................................................................................................... 4
Right to Indictment and Presentment.................................................................................................................................................. 6
Right to Written Statement of Charges............................................................................................................................................... 6
Right to be Present at Trial ................................................................................................................................................................. 7
Prohibition against Ex Post Facto Crimes .......................................................................................................................................... 7
Protection against Double Jeopardy.................................................................................................................................................... 8
Speedy & Public Trial......................................................................................................................................................................... 9
Burden & Standard of Proof ............................................................................................................................................................. 10
Privilege Against Self-Incrimination ................................................................................................................................................ 11
Right to Examine or Have Examined Adverse Witnesses................................................................................................................ 12
Right to Compulsory Process to Obtain Witnesses .......................................................................................................................... 13
Right to Trial by Impartial Judge...................................................................................................................................................... 14
Right to Trial By Impartial Jury........................................................................................................................................................ 14
Right to Appeal to Independent Reviewing Authority ..................................................................................................................... 16
Protection against Excessive Penalties ............................................................................................................................................. 17

1

Comparison of Selected Procedural Rights in Criminal Tribunals

General Courts-Martial
M.C.O. No. 1
Nuremberg IMT
ICTY/ICTR
If the defendant fails to enter a
The accused shall be presumed
No written rule addressing
“The accused shall be presumed
Presumption
proper plea, a plea of not guilty
innocent until proven guilty.
presumption of innocence,
innocent until proved guilty
of Innocence
will be entered.
§ 5(B).
although U.S. negotiators were
according to the provisions of
R.C.M. 910(b).
Commission members must base
able to win a concession from
the present Statute.”
Members of court martial must
their vote for a finding of guilty
Soviet negotiators to the effect
ICTY Stat. art. 21(3); ICTR Stat.
be instructed that the “accused
on evidence admitted at trial.
that the rule would apply. See
art. 20.
must be presumed to be innocent
§§ 5(C); 6(F).
Henry T. King, Jr., Robert
If the accused fails to enter a
until the accused’s guilt is
Jackson's Transcendent
The Commission must determine
plea, the court must enter a plea
established by legal and
Influence Over Today's World,
the voluntary and informed
of not guilty on the accused’s
competent evidence beyond a
68 ALB. L. REV. 23, 25 (2006).
nature of any plea agreement
behalf.
reasonable doubt.”
submitted by the accused and
ICTY Rule 62(a)(iv); ICTR Rule
R.C.M. 920(e).
approved by the Appointing
62(a)(iii).
The accused shall be properly
Authority before admitting it as
Instruments of restraint may not
attired in uniform with grade
stipulation into evidence.
be used during court
insignia and any decorations to
§ 6(B).
proceedings.
which entitled. Physical
ICTY Rule 83; ICTR Rule 83.
restraint shall not be imposed
Guilty pleas may be accepted
unless prescribed by the military
only if the trial chamber
judge.
determines it is voluntary,
R.C.M. 804.
informed, unequivocal, and
supported by evidence.
ICTY Rule 63 bis; ICTR Rule
62(B).
Coerced confessions or
Not provided. Neither the M.O.
No right to remain silent.
A suspect to be questioned by
Right to
confessions made in custody
nor M.C.O. requires a warning
the prosecutor during an
Remain Silent without statutory equivalent of
or bars the use of statements
investigation must be informed
Miranda warning are not
made during military
of his right to remain silent.
admissible as evidence.
interrogation, or any coerced
ICTY Rule 42; ICTR Rule 42.
Art. 31, UCMJ, 10 U.S.C. §
statement, from military
Persons are to be informed of the
831.
commission proceedings.
right to remain silent upon their
The prosecutor must notify the
Art. 31(a), UCMJ (10 U.S.C. §
arrest.
defense of any incriminating
831) bars persons subject to it
ICTY Rule 55; ICTR Rule 55.
statements made by the accused
from compelling any individual
“No evidence shall be admissible

2

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ICTY/ICTR
that are relevant to the case prior
to make a confession, but there
if obtained by methods which
to the arraignment. Motions to
does not appear to be a remedy
cast substantial doubt on its
suppress such statements must
in case of violation. No person
reliability or if its admission is
be made prior to pleading.
subject to the UCMJ may
antithetical to, and would
Mil. R. Evid. 304.
compel any person to give
seriously damage, the integrity
Interrogations conducted by
evidence before any military
of the proceedings.”
foreign officials do not require
tribunal if the evidence is not
ICTY Rule 95; ICTR Rule 95.
warnings or presence of counsel
material to the issue and may

unless the interrogation is
tend to degrade him.

instigated or conducted by U.S.
10 U.S.C. § 831.
military personnel.
Mil. R. Evid. 305.
“Evidence obtained as a result of
Not provided; no exclusionary
Not provided.
“No evidence shall be admissible
Freedom
an unlawful search or seizure ...
rule appears to be available.
if ... its admission is antithetical
from
is inadmissible against the
However, monitored
to, and would seriously damage,
Unreasonable accused ...” unless certain
conversations between the
the integrity of the proceedings.”
Searches &
exceptions apply.
detainee and defense counsel
ICTY Rule 95; ICTR Rule 95.
Seizures
Mil. R. Evid. 311.
may not be communicated to

“Authorization to search” may
persons involved in prosecuting

be oral or written, and may be
the accused or used at trial.
issued by a military judge or an
M.C.O. No. 3.
officer in command of the area
No provisions for determining
to be searched, or if the area is
probable cause or issuance of
not under military control, with
search warrants are included.
authority over persons subject to

military law or the law of war. It Insofar as searches and seizures
must be based on probable
take place outside of the United
cause.
States against non-U.S. persons,
Mil. R. Evid. 315.
the Fourth Amendment may not
Interception of wire and oral
apply.
communications within the
United States v. Verdugo
United States requires judicial
Urquidez, 494 U.S. 259 (1990).
application in accordance with

18 U.S.C. §§ 2516 et seq.
Mil. R. Evid. 317.

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A search conducted by foreign
officials is unlawful only if the
accused is subject to “gross and
brutal treatment.”
Mil. R. Evid. 311(c).

The defendant has a right to
M.C.O. 1 provides that the
“Each defendant has the right to
Prior to being charged, “[i]f
Assistance of military counsel at government
accused must be represented “at
conduct his own defense or to
questioned, the suspect shall be
Effective
expense. The defendant may
all relevant times” (presumably,
have the assistance of counsel,”
entitled to be assisted by counsel
Counsel
choose counsel, if that attorney
once charges are approved until
and was required to be told of
of his own choice, including the
is reasonably available, and may
findings are final — but not for
that right. Only one counsel was
right to have legal assistance
hire a civilian attorney in
individuals who are detained but
permitted to appear at the trial
assigned to him without payment
addition to military counsel.
not charged) by detailed defense
for any defendant, unless the
by him in any such case if he
Art 38, UCMJ, 10 U.S.C. § 838.
counsel.
IMT granted special permission.
does not have sufficient means
Appointed counsel must be
§ 4(C)(4).
The IMT was to designate
to pay for it, as well as to
certified as qualified and may
The accused is assigned a
counsel for any defendant who
necessary translation into and
not be someone who has taken
military judge advocate to serve
failed to apply for particular
from a language he speaks and
any part in the investigation or
as counsel, but may request to
counsel or if the counsel
understands.”
prosecution, unless explicitly
replace or augment the detailed
requested was not available,
ICTY Stat. art. 18; ICTR Stat.
requested by the defendant.
counsel with a specific officer, if
unless the defendant elected in
art. 17.
Art. 27, UCMJ, 10 U.S.C. § 827.
that person is available.
writing to conduct his own
The accused has the right “to
defense.
The attorney-client privilege is
§ 4(C)(3)(a).
communicate with counsel of his
honored.
The accused may also hire a
IMT Rule 2.
own choosing ... and to defend
Mil. R. Evid. 502.
civilian attorney who is a U.S.

himself in person or through
citizen, is admitted to the bar in
legal assistance of his own
any state, district, or possession,
choosing; to be informed, if he
has a SECRET clearance (or
does not have legal assistance, of
higher, if necessary for a
this right; and to have legal
particular case), and agrees to
assistance assigned to him, in
comply with all applicable rules.
any case where the interests of
The civilian attorney does not
justice so require, and without
replace the detailed counsel, and
payment by him in any such case
is not guaranteed access to
if he does not have sufficient
classified evidence or closed
means to pay for it.”
hearings.
ICTY Stat. art. 21; ICTR Stat.

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ICTY/ICTR
§ 4(C)(3)(b).
art. 20.
Defense Counsel may present
All communications between
evidence at trial and cross-
lawyer and client are privileged,
examine witnesses for the
and disclosure cannot be ordered
prosecution.
unless the client or has waived
§ 5(I).
the privilege by voluntarily
The Appointing Authority must
disclosing the content of the
order such resources be provided
communication to a third party.
to the defense as he deems
ICTY Rule 97; ICTR Rule 97.
necessary for a “full and fair
Qualifications for counsel and
trial.”
assignment of counsel to
§ 5(H).
indigent defendants are set forth
Communications between
in ICTY Rules 44-45 and ICTR
defense counsel and the accused
Rules 44-45.
are subject to monitoring by the

government. (Although

information obtained through
such monitoring may not be used
as evidence against the accused,
M.C.I. No. 3, the monitoring
could arguably have a chilling
effect on attorney-client
conversations, possibly
hampering the ability of defense
counsel to provide effective
representation.)

5

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M.C.O. No. 1
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ICTY/ICTR
The right to indictment by grand
Probably not applicable to

The prosecutor, if satisfied that
Right to
jury is explicitly excluded in
military commissions, provided
there is sufficient evidence to
Indictment
“cases arising in the land or
the accused is an enemy
provide reasonable grounds for
and
naval forces.”
belligerent.
believing that a suspect has
Presentment
Amendment V.
See Ex parte Quirin, 317 U.S. 1
committed a crime within the
Whenever an offense is alleged,
(1942).
jurisdiction of the ICTY (or
the commander is responsible for The Office of the Chief
ICTR), prepares an indictment
initiating a preliminary inquiry
Prosecutor prepares charges for
for confirmation by a Judge,
and deciding how to dispose of
referral by the Appointing
setting forth the name and
the offense.
Authority.
particulars of the suspect, and a
R.C.M. 303-06.
§ 4(B).
concise statement of the facts of
the case and of the crime with
There is no requirement for an
which the suspect is charged.
impartial investigation prior to a
referral of charges. The
ICTY Stat. arts. 18-19 and ICTY
Commission may adjust a
Rule 47; ICTR Stat. arts. 17-18;
charged offense in a manner that
ICTR Rule 47.
does not change the nature or
A person against whom an
increase the seriousness of the
indictment has been confirmed is
charge.
to be taken into custody and
§ 6(F).
immediately informed of the
charges in a language he
understands.
ICTY Stat. arts. 20-21 and Rule
47; ICTR Stat. arts. 19-20 and
ICTR Rule 47.
The prosecutor may amend the
indictment as prescribed in
ICTY Rule 50 or ICTR Rule 50.
Charges and specifications must
Copies of approved charges are
“Each individual defendant in
An arrested person must be
Right to
be signed under oath and made
provided to the accused and
custody shall receive not less
completely informed of charges,
Written
known to the accused as soon as
Defense Counsel in English and
than 30 days before trial a copy,
which may be satisfied by
Statement of
practicable.
another language the accused
translated into a language which
presentation to the accused of a
Charges
Art. 30, UCMJ, 10 U.S.C. § 830.
understands, if appropriate.
he understands, (1) of the
copy of the written charges,
§ 5(A).
Indictment, (2) of the Charter,
translated, if necessary.
(3) of any other documents
ICTY Rule 59 bis.

6

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Nuremberg IMT
ICTY/ICTR
lodged with the Indictment….”
At the ICTR, the registrar is
IMT Rule 2.
required to prepare certified
copies of the indictment in a
language the accused
understands, but there does not
appear to be a requirement that
the accused be furnished with a
written copy.
ICTR Rule 47.

The presence of the accused is
The accused may be present at
Not provided. “The Tribunal
The accused has the right “to be
Right to be
required during arraignment, at
every stage of trial before the
shall have the right to take
tried in his presence.”
Present at
the plea, and at every stage of
Commission unless the Presiding proceedings against a person
ICTY Stat. art. 21; ICTR Stat.
Trial
the court-martial unless the
Officer excludes the accused
charged … in his absence, if he
art. 20.
accused waives the right by
because of disruptive conduct or
has not been found or if the

voluntarily absenting him or
for security reasons, or “any
Tribunal, for any reason, finds it
herself from the proceedings
other reason necessary for the
necessary, in the interests of
after the arraignment or by
conduct of a full and fair trial.”
justice, to conduct the hearing in
persisting in conduct that
§§ 4(A)(5)(a); 5(K); 6B(3).
his absence.”
justifies the trial judge in
IMT Charter art. 12.
ordering the removal of the
(Martin Bormann, who was
accused from the proceedings.
never located and was rumored
R.C.M. 801.
to be dead, was convicted in
absentia and sentenced to death.)
Courts-martial will not enforce
Not provided, but may be
Not provided. Article 6 of the
Jurisdiction is limited to
Prohibition
an ex post facto law, including
implicit in restrictions on
IMT Charter provided for
specified crimes.
against Ex
increasing amount of pay to be
jurisdiction over offenses.
jurisdiction to try not only war
ICTY Stat. arts. 2-5 (grave
Post Facto
forfeited for specific crimes.
See § 3(B). M.C.I. No. 2 § 3(A)
crimes, but also “crimes against
breaches of the Geneva
Crimes
U.S. v. Gorki, 47 M.J. 370
provides that “no offense is
peace” and “crimes against
Conventions, violations of the
(1997).
cognizable in a trial by military
humanity,” which had never
laws or customs of war,

commission if that offense did
before been defined as
genocide, and crimes against
not exist prior to the conduct in
international crimes. The IMT
humanity).
question.”
rejected defenses based on the ex
ICTR jurisdiction is limited to
post facto nature of the charges,
genocide, crimes against
remarking that the rule against
humanity, and violations of

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ICTY/ICTR
such charges “is not a limitation
Article 3 Common to the Geneva
of sovereignty, but is in general
Conventions and of Additional
a principle of justice.” The IMT
Protocol II.
went on to conclude that justice
ICTR Stat. arts. 1-4.
does not prohibit, but rather
requires the punishment of
“those who in defiance of
treaties and assurances have
attacked neighbouring states
without warning.”
IMT Opinion and Judgment:
The Law of the Charter.
Double jeopardy clause applies.
The accused may not be tried
Not provided. Jurisdiction was
“No person shall be tried before
Protection
See Wade v. Hunter, 336 US
again by any Commission for a
concurrent with national courts,
a national court for acts
against
684, 688-89 (1949).
charge once a Commission’s
but the IMT could only try
constituting serious violations of
Double
Art. 44, UCMJ prohibits double
finding becomes final.
serious crimes not limited to a
international humanitarian law
Jeopardy
jeopardy, provides for jeopardy
(Jeopardy appears to attach when specific geographical location.
under the present Statute, for
to attach after introduction of
the finding becomes final, at
which he or she has already been
evidence.
least with respect to subsequent
tried by the International
10 U.S.C. § 844.
U.S. military commissions.)
Tribunal…”
General court-martial proceeding § 5(P).
A person who has been tried by
is considered to be a federal trial
However, although a finding of
a national court for acts
for double jeopardy purposes.
Not Guilty by the Commission
constituting serious violations of
Double jeopardy does not result
may not be changed to Guilty,
international humanitarian law
from charges brought in state or
either the reviewing panel, the
may be subsequently tried by the
foreign courts, although court-
Appointing Authority, the
ad hoc tribunal, but only if:
martial in such cases is
Secretary of Defense, or the
(a) the act for which he or she
disfavored.
President may return the case for
was tried was characterized as an
U. S. v. Stokes, 12 M.J. 229
“further proceedings” prior to
ordinary crime; or
(C.M.A. 1982).
the findings’ becoming final. If a
(b) the national court
finding of Not Guilty is vacated
Once military authorities have
proceedings were not impartial
and retried, double jeopardy may
turned service member over to
or independent, were designed to
be implicated.
civil authorities for trial, military
shield the accused from
may have waived jurisdiction for
The order does not specify
international criminal
that crime, although it may be
whether a person already tried
responsibility, or the case was

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ICTY/ICTR
possible to charge the individual
by any other court or tribunal
not diligently prosecuted.
for another crime arising from
may be tried by a military
ICTY Stat. art. 10; ICTR Stat.
the same conduct.
commission under the M.O.
art. 9.
See 54 AM. JUR. 2D, Military and The M.O. reserves for the
“When...criminal proceedings
Civil Defense §§ 227-28.
President the authority to direct
have been instituted against a
the Secretary of Defense to
person before a court of any
transfer an individual subject to
State for a crime for which that
the M.O. to another
person has already been tried by
governmental authority, which is
the Tribunal, a Trial Chamber
not precluded by the order from
shall…issue a reasoned order
prosecuting the individual. This
requesting that court
subsection could be read to
permanently to discontinue its
authorize prosecution by federal
proceedings. If that court fails to
authorities after the individual
do so, the President may report
was subject to trial by military
the matter to the Security
commission, although a federal
Council.”
court would likely dismiss such
ICTY Rule 13; ICTR Rule 13.
a case on double jeopardy
However, the prosecution can
grounds.
seek to appeal an acquittal,
M.O. § 7(e).
including based on the discovery
a new fact that was unknown at
the time of the proceedings but
that could have been decisive.
ICTY Stat. art. 26.; ICTR Stat.
art. 25.
In general, accused must be
The Commission is required to
The IMT was to ensure
The accused has the right “to be
Speedy &
brought to trial within 120 days
proceed expeditiously,
expeditious proceedings,
tried without undue delay.”
Public Trial
of the preferral of charges or the
“preventing any unnecessary
although this principle was not
ICTY Stat. art. 21; ICTR Stat.
imposition of restraint,
interference or delay.”
framed in terms of the rights of
art. 20.
whichever date is earliest.
§ 6(B)(2).
the accused. The IMT was to
Proceedings are to be public
R.C.M. 707(a).
Failure to meet a specified
“take strict measures to prevent
unless otherwise provided.
The right to a public trial applies
deadline does not create a right
any action which will cause
ICTY Rule 78; ICTR Rule 78.
in courts-martial but is not
to relief.
unreasonable delay, and rule out
“The press and the public [may]
absolute.
§ 10.
irrelevant issues and statements
be excluded from all or part of
R.C.M. 806.
of any kind whatsoever,” and to
The rules do not prohibit
the proceedings for reasons of:

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The military trial judge may
detention without charge, or
“deal summarily with any
(i) public order or morality;
exclude the public from portions
require charges to be brought
contumacy, imposing
(ii) safety, security or non-
of a proceeding for the purpose
within a specific time period.
appropriate punishment,
disclosure of the identity of a
of protecting classified
Proceedings “should be open to
including exclusion of any
victim or witness...; or
information if the prosecution
the maximum extent possible,”
Defendant or his Counsel from
(iii) the protection of the
demonstrates an overriding need
but the Appointing Authority has some or all further proceedings,
interests of justice.”
to do so and the closure is no
broad discretion to close
but without prejudice to the
ICTY Rule 79; ICTY Rule 79.
broader than necessary.
hearings, and may exclude the
determination of the charges.”

United States v. Grunden, 2 M.J.
public or accredited press from
IMT Charter art. 18.

116 (CMA 1977).
open proceedings.
The IMT was to rule in open
§ 6(B)(3).
court upon all questions arising
during the trial, although it could
deliberate certain matters in
closed proceedings.
IMT Rule 8.
Provision was made for the
publication of all proceedings in
multiple languages.
IMT Charter art. 25.
Members of court martial must
Commission members may vote
The IMT could “admit any
“A finding of guilt may be
Burden &
be instructed that the burden of
for a finding of guilty only if
evidence which it deem[ed] to be reached only when a majority of
Standard of
proof to establish guilt is upon
convinced beyond a reasonable
of probative value.”
the Trial Chamber is satisfied
Proof
the government and that any
doubt, based on evidence
IMT Charter art. 19.
that guilt has been proved
reasonable doubt must be
admitted at trial, that the accused
Guilty verdicts and sentences
beyond reasonable doubt.”

resolved in favor of the
is guilty.
required a majority vote, that is,
ICTY Rule 87; ICTR Rule 87.
defendant.
§§ 5(C); 6(F).
three out of four votes.
“A Chamber may admit any

R.C.M. 920(e).
The burden of proof of guilt is
IMT Charter art. 4.
relevant evidence which it deems
on the prosecution, § 5(C);
to have probative value,” and
however, M.C.I. No. 2 states that
“… shall apply rules of evidence
element of wrongfulness of an
which will best favour a fair
offense is to be inferred absent
determination of the matter
evidence to the contrary.
before it and are consonant with
M.C.I. No. 2 § 4(B).
the spirit of the Statute and the
general principles of law.”
ICTY Rule 89; ICTR Rule 89.

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At the ICTY, “A Chamber may
receive the evidence of a witness
orally or, where the
interests of justice allow, in
written form.”
ICTY Rule 90.
At the ICTR, “Witnesses shall
… be heard directly by the
Chambers unless [it] has ordered
that the witness be heard by
means of a deposition as
provided for in Rule 71.”
ICTR Rule 90.

No person subject to the UCMJ
The accused is not required to
Not provided.
The accused may not to be
Privilege
may compel any person to
testify, and the commission may
compelled to testify against
Against Self-
answer incriminating questions.
draw no adverse inference from,
himself or to confess guilt.
Incrimination Art. 31(a) UCMJ, 10 U.S.C. §
a refusal to testify.
ICTY Stat. art. 21; ICTR Stat.
831(a).
§ 5(F).
art. 20.
Defendant may not be compelled However, there is no rule against
“A witness may object to
to give testimony that is
the use of coerced statements as
making any statement which
immaterial or potentially
evidence, except for statements
might tend to incriminate the
degrading.
resulting from torture.
witness. The Chamber may
Art. 31(c), UCMJ, 10 U.S.C. §
There is no specific provision for
...compel the witness to answer
831(c).
immunity of witnesses to
the question [but such testimony]
No adverse inference is to be
prevent their testimony from
shall not be used as evidence in a
drawn from a defendant’s refusal being used against them in any
subsequent prosecution against
to answer any questions or
subsequent legal proceeding;
the witness for any offence other
testify at court-martial.
however, under 18 U.S.C.
than false testimony.”
Mil. R. Evid. 301(f).
§§ 6001 et seq., a witness
ICTY Rule 90; ICTR Rule 90.
Witnesses may not be compelled
required by a military tribunal to

to give testimony that may be
give incriminating testimony is

incriminating unless granted
immune from prosecution in any
immunity for that testimony by a
criminal case, other than for
general court-martial convening
perjury, giving false statements,

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authority, as authorized by the
or otherwise failing to comply
Attorney General, if required.
with the order.
18 U.S.C. § 6002; R.C.M. 704.
18 U.S.C. §§6002; 6004.

Hearsay rules apply as in federal
Defense Counsel may cross-
Defendants had the right “to
The accused has the right “to
Right to
court.
examine the prosecution’s
present evidence at the Trial in
examine, or have examined, the
Examine or
Mil. R. Evid. 801 et seq.
witnesses who appear before the
support of [their] defense, and to
witnesses against him….”
Have
In capital cases, sworn
Commission.
cross-examine any witness
ICTY Stat. art. 21; ICTR Stat.
Examined
depositions may not be used in
§ 5(I).
called by the Prosecution.”
art. 20.
Adverse
lieu of witness, unless court-
However, the Commission may
IMT Charter art. 16(d).
Hearsay evidence may be
Witnesses
martial is treated as non-capital
also permit witnesses to testify
Hearsay was not strictly
admissible. “A Chamber may
or it is introduced by the
by telephone or other means not
prohibited. The judges were
admit any relevant evidence
defense.
requiring the presence of the
empowered to inquire into the
which it deems to have probative
Art. 49, UCMJ, 10 U.S.C. § 849.
witness at trial, in which case
nature of evidence and determine value. ... A Chamber may
cross-examination may be
its reliability.
exclude evidence if its probative
impossible.
IMT Charter art. 20.
value is substantially outweighed
§ 6(D)(2).
by the need to ensure a fair
In the case of closed proceedings
trial.”
or classified evidence, only the
ICTY Rule 89.
detailed defense counsel may be
“A Trial Chamber may admit, in
permitted to participate. Hearsay
whole or in part, the evidence of
evidence is admissible as long as
a witness in the form of a written
the Commission determines it
statement in lieu of oral
would have probative value to a
testimony which goes to proof of
reasonable person.
a matter other than the acts and
§ 6(D)(1).
conduct of the accused as
The Commission may consider
charged in the indictment.”
testimony from prior trials as
ICTY Rule 92 bis.
well as sworn and unsworn
Unsworn written testimony and
written statements, apparently
transcripts are admissible only
without regard to the availability
under certain circumstances,
of the declarant, in apparent
including where the declarant is
contradiction with 10 U.S.C.
unavailable but there are

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§ 849.
sufficient indicia of reliability to
§ 6(D)(3).
satisfy the court.
Id.
The ICTY has held that “out-of
court statements that are relevant
and found
to have probative value are
admissible” but that judges
may be guided by “hearsay
exceptions generally recognised
by some national legal
systems, as well as the
truthfulness, voluntariness and
trustworthiness of the evidence,
as
appropriate.” Prosecutor v.
Tadic, Case No.IT-94-1-T,
Decision on Defense Motion on
Hearsay, 5 August 1996, paras.
7-19.
Defendants before court-martial
The accused may obtain
The defense had an opportunity
The accused has the right “to
Right to
have the right to compel
witnesses and documents “to the
to apply to the Tribunal for the
examine, or have examined, the
Compulsory
appearance of witnesses
extent necessary and reasonably
production of witnesses or of
witnesses against him and to
Process to
necessary to their defense.
available as determined by the
documents by written
obtain the attendance and
Obtain
R.C.M. 703.
Presiding Officer.”
application stating where the
examination of witnesses on his
Witnesses
Process to compel witnesses in
§ 5(H).
witness or document was
behalf under the same conditions
court-martial cases is to be
The Commission has the power
thought to be located and the
as witnesses against him.”
similar to the process used in
to summon witnesses as
facts proposed to be proved.
ICTY Stat. art. 21; ICTR Stat.
federal courts.
requested by the defense.
The Tribunal had the discretion
art. 20.
Art. 46, UCMJ, 10 U.S.C. § 846.
§ 6(A)(5).
to grant applications and seek to
have evidence made available by
The power to issue subpoenas is
cooperating states.
exercised by the Chief
Prosecutor; the Chief Defense
IMT Rule 4.
Counsel has no such authority.
M.C.I. Nos. 3-4.

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A qualified military judge is
The Presiding Officer is
Each state party to the London
The judges are to be “persons of
Right to Trial
detailed to preside over the
appointed directly by the
Agreement establishing the IMT
high moral character,
by Impartial
court-martial. The convening
Appointing Authority, which
nominated one judge, whom
impartiality and integrity....”
Judge
authority may not prepare or
decides all interlocutory issues.
they could replace “for reasons
ICTY Stat. art. 13; ICTR Stat.
review any report concerning the
There do not appear to be any
of health or for other good
art. 12.
performance or effectiveness of
special procedural safeguards to
reasons,” except that no
“A Judge may not sit on a trial or
the military judge.
ensure impartiality, but
replacement was permitted to
appeal in any case in which the
Art. 26, UCMJ, 10 U.S.C. § 826.
challenges for cause have been
take place during a trial, other
Judge has a personal interest or
Article 37, UCMJ, prohibits
permitted.
than by an alternate.
concerning which the Judge has
unlawful influence of courts-
§ 4(A)(4).
IMT Charter art. 3.
or has had any association which
martial through admonishment,
The presiding judge, who
might affect his or her
censure, or reprimand of its
decides issues of admissibility of
impartiality.”
members by the convening
evidence, also votes as part of
ICTY Rule 15; ICTR Rule 15.
authority or commanding officer, the commission on the finding of
or any unlawful attempt by a
guilt or innocence.
person subject to the UCMJ to
Article 37, UCMJ, provides that
coerce or influence the action of
no person subject to the UCMJ
a court-martial or convening
“may attempt to coerce or, by
authority.
any unauthorized means,
Art. 37, UCMJ, 10 U.S.C. § 837.
influence the action of a court-
martial or any other military
tribunal or any member thereof,
in reaching the findings or
sentence in any case, or the
action of any convening,
approving, or reviewing
authority with respect to his
judicial acts.”
10 U.S.C. § 837.
M.C.I. No. 9 clarifies that Art.
37 applies with respect to
members of the review panel.
MCI No. 9 § 4(F).
A military accused has no Sixth
Military tribunals probably do
There was no provision for a
The ICTY follows the civil law
Right to Trial
Amendment right to a trial by
not require a jury trial.
jury trial.
tradition of employing a panel of

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By Impartial
petit jury.
See Ex Parte Quirin, 317 U.S. 1,
judges to decide questions of
Jury
Ex Parte Quirin, 317 U.S. 1, 39-
39-40 (1942) (dicta).
both fact and law. There is no
40 (1942) (dicta).
The commission members are
provision for trial by jury.
However, “Congress has
appointed directly by the
provided for trial by members at
Appointing Authority. While the
a court-martial.”
Commission is bound to proceed
United States v. Witham, 47 MJ
impartially, there do not appear
297, 301 (1997); Art. 25, UCMJ,
to be any special procedural
10 U.S.C. § 825.
safeguards designed to ensure
The Sixth Amendment
their impartiality. However,
requirement that the jury be
defendants have successfully
impartial applies to court-martial
challenged members for cause.
members and covers not only the
§ 6(B).
selection of individual jurors, but
also their conduct during the trial
proceedings and the subsequent
deliberations.
United States v. Lambert, 55
M.J. 293 (2001).
The absence of a right to trial by
jury precludes criminal trial of
civilians by court-martial.
Reid v. Covert, 354 U.S. 1
(1957); Kinsella v. United States
ex rel. Singleton, 361 U.S. 234
(1960).

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The writ of habeas corpus
A review panel appointed by the
None. “The judgment of the
The ICTY Statute creates an
Right to
provides the primary means by
Secretary of Defense reviews the
Tribunal as to the guilt or the
Appeals Chamber, which may
Appeal to
which those sentenced by
record of the trial in a closed
innocence of any Defendant
hear appeals from convicted
Independent
military court, having exhausted
conference, disregarding any
shall give the reasons on which
persons or from the prosecutor
Reviewing
military appeals, can challenge a
procedural variances that would
it is based, and shall be final and
on the grounds of “an error on a
Authority
conviction or sentence in a
not materially affect the outcome not subject to review.”
question of law invalidating the
civilian court. The scope of
of the trial, and recommends its
IMT Charter art. 26.
decision,” or
matters that a court will address
disposition to the Secretary of
The Control Council for
“an error of fact which has
is narrower than in challenges of
Defense. Although the Defense
Germany was empowered to
occasioned a miscarriage of
federal or state convictions.
Counsel has the duty of
reduce or otherwise alter the
justice.”
Burns v. Wilson, 346 U.S. 137
representing the interests of the
sentences, but could not increase
ICTY Stat. art. 25; ICTY Stat.
(1953).
accused during any review
its severity.
art. 24.
process, the review panel need
IMT Charter art. 29.

not consider written submissions
from the defense, nor does there
appear to be an opportunity to
rebut the submissions of the
prosecution. If the majority of
the review panel forms a
“definite and firm conviction
that a material error of law
occurred,” it may return the case
to the Appointing Authority for
further proceedings.
§ 6(H)(4).
The review panel
recommendation does not appear
to be binding. The Secretary of
Defense may serve as
Appointing Authority and as the
final reviewing authority, as
designated by the President.
Although the M.O specifies that
the individual is not privileged to
seek any remedy in any U.S.
court or state court, the court of

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any foreign nation, or any
international tribunal, M.O.
§ 7(b), Congress established
jurisdiction in the Court of
Appeals for the D.C. Circuit to
hear challenges to final decisions
of military commissions.
Detainee Treatment Act of 2005.
Death may only be adjudged for
The accused is permitted to
Penalties included “death or such Penalties are limited to
Protection
certain crimes where the
make a statement during
other punishment as shall be
imprisonment; there is no death
against
defendant is found guilty by
sentencing procedures.
determined by [the IMT] to be
penalty. The ICTY may also
Excessive
unanimous vote of court-martial
§ 5(M).
just.”
order the return of any property
Penalties
members present at the time of
The death sentence may be
IMT Charter art. 27.
and proceeds acquired by
the vote. Prior to arraignment,
imposed only on the unanimous
The IMT could also order the
criminal conduct to their rightful
the trial counsel must give the
vote of a seven-member panel.
convicted person to deliver any
owners.
defense written notice of
§ 6(F).
stolen property to the Control
ICTY Stat. art. 24; ICTR Stat.
aggravating factors the
The commission may only
Council for Germany.
art. 23.
prosecution intends to prove.
impose a sentence that is
IMT Charter art. 28.
Sentences are to be imposed
R.C.M. 1004.
appropriate to the offense for
consistently with the general
A conviction of spying during
which there was a finding of
practice regarding prison
time of war under article 106,
guilty, including death,
sentences in the courts of the
UCMJ, carries a mandatory
imprisonment, fine or restitution,
former Yugoslavia or Rwanda,
death penalty.
or “other such lawful
taking into account such factors
10 U.S.C. § 906.
punishment or condition of
as the gravity of the offence and

punishment as the commission
the individual circumstances of
shall determine to be proper.”
the convicted person.
§ 6(G).
ICTY Stat. art. 24; ICTR Stat.
If the Secretary of Defense has
art. 23.
the authority to conduct the final

review of a conviction and
sentence, he may mitigate,
commute, defer, or suspend, but
not increase, the sentence.
However, he may disapprove the
findings and return them for

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further action by the military
commission.
§ 6(H).

Source: Congressional Research Service

18

Document Outline

elsea.pdf

Comparison of Selected Procedural Rights in Criminal Tribuna

Presumption of Innocence

Right to Remain Silent

Freedom from Unreasonable Searches & Seizures

Assistance of Effective Counsel

Right to Indictment and Presentment

Right to Written Statement of Charges

Right to be Present at Trial

Prohibition against Ex Post Facto Crimes

Protection against Double Jeopardy

Speedy & Public Trial

Burden & Standard of Proof

Privilege Against Self-Incrimination

Right to Examine or Have Examined Adverse Witnesses

Right to Compulsory Process to Obtain Witnesses

Right to Trial by Impartial Judge

Right to Trial By Impartial Jury

Right to Appeal to Independent Reviewing Authority

Protection against Excessive Penalties