Who’s Who in a Court-Martial: Convening Authority, Judge, Counsel, and Panel
Key takeaways
- Courts-martial are temporary courts: a convening authority “breathes life” into each one by convening order, and it dissolves when the case ends.
- The convening authority personally selects panel members using the six Article 25 criteria — a power that cannot be delegated to the staff.
- Since the 2016 Military Justice Act, no general or special court-martial can proceed without a military judge; fixed panel sizes are 8 for a GCM, 4 for a SPCM, and 12 in capital cases.
- Defense counsel must be a certified judge advocate under Article 27(b) — and the accused may add individual military counsel or a civilian defense lawyer.
- Panel members are not passive: they may question witnesses and even ask that witnesses be called or recalled, subject to the military judge’s rulings.
How a court-martial comes into being
Unlike a civilian courthouse, a court-martial does not sit waiting for cases. It exists temporarily — called into life by an officer Congress has empowered to create it, and permanently adjourned when its work is done. That officer is the convening authority, and the instrument is a convening order that details the members who will sit on the panel. The Supreme Court described the mechanics well over a century ago:
“[T]he convening of a court-martial is simply the giving of an order to certain officers to assemble as a court, and, when so assembled, to exercise certain powers conferred upon them by [statute].”Swaim v. United States, 165 U.S. 553, 556–57 (1897), quoting Runkle v. United States, 19 Ct. Cl. 396, 409 (1884)
Convening is distinct from referral — the separate decision to send preferred charges to that court for trial. How charges travel from accusation to referral is covered in preferral and referral of charges, and the whole architecture of the system in our overview of military justice. This guide maps the people: who they are, what they can do, and where their power stops.
Every role at a glance
| Player | Who they are | Core function | Key limits |
|---|---|---|---|
| Convening authority (CA) | Commander empowered by Articles 22–24 (or by secretarial designation) | Creates the court, personally selects members, refers most charges, acts on clemency | Cannot delegate member selection; disqualified from referral if an “accuser”; no unlawful influence (Art. 37) |
| Special trial counsel (OSTC) | Independent judge-advocate prosecutors outside the chain of command | Make disposition and referral decisions for covered offenses under the post-2023 reforms | Authority limited to covered offenses; the CA still convenes the court and details members |
| Staff judge advocate (SJA) | The commander’s senior lawyer | Advises the CA, including Article 34 pretrial advice before GCM referral | Advisor only — staff cannot select the panel or launder improper criteria into it |
| Military judge | Certified judge advocate detailed by the trial judiciary | Presides, rules on law and evidence, sentences in judge-alone cases | Must be impartial; recusal governed by R.C.M. 902 |
| Military magistrate | New office created by Article 26a (2016 MJA) | May hear certain matters, including some judge-alone SPCMs with consent | Same qualification language as judges; limited docket |
| Trial counsel (TC) | Judge advocate qualified under Article 27(b) | Prosecutes the case for the government | Disqualified from prosecuting if they served as the accuser or Article 32 officer |
| Defense counsel (DC) | Certified judge advocate detailed at no cost to the accused | Represents the accused from investigation through post-trial | Must be conflict-free; relationship severable only for good cause |
| Civilian defense counsel | Private lawyer retained by the accused | Leads or joins the defense team at the accused’s election | Retained at no expense to the government; must satisfy R.C.M. 502(d) qualifications |
| Panel members | Officers (and enlisted members on request) selected by the CA | Decide findings and, in some cases, sentence; may question and request witnesses | Selected only on Article 25 criteria; subject to voir dire and challenge |
| Alternates | Additional members authorized by the CA | Hear all evidence; step in if a member is excused | Do not deliberate unless seated as a member |
| The accused | The service member on trial | Elects forum, decides plea, testifies or remains silent, may proceed pro se | Voluntary absence after arraignment can waive the right to be present |
The convening authority
The convening authority holds the powers that make the military justice system unlike any civilian one: creating the court, choosing the people who will decide the case, and — for most offenses — deciding whether charges go to trial at all. Assignment to a command listed in Articles 22 through 24 confers the power by operation of law, and the President or a service Secretary can designate others. The CA’s member-selection duty is personal and non-delegable, exercised through the six “best qualified” criteria of Article 25: age, education, training, experience, length of service, and judicial temperament.
The power has real edges. A CA who becomes an “accuser” — by swearing charges, directing them, or holding a personal rather than official interest in the case — loses the authority to refer it to a special or general court-martial. Selecting members to steer an outcome is “court stacking,” a species of unlawful command influence. And under the post-2023 reforms, an independent Office of Special Trial Counsel now makes the referral decision for covered offenses such as sexual assault. The full analysis — sources of the power, accuser disqualification, and how panel selection is attacked — is in The Convening Authority: Powers and Limits.
The panel: size, selection, and forum choice
For cases referred on or after 1 January 2019, the 2016 Military Justice Act fixed panel sizes that once floated: 8 members for a general court-martial (which may proceed with as few as 6 if members are excused after impanelment), 4 members for a special court-martial, and 12 members in capital cases. A summary court-martial has no panel at all — one officer, no military judge, and by statute no criminal conviction. The differences between the three levels are compared in Summary, Special, and General Courts-Martial Compared.
Three features of panel composition matter most to an accused:
- Forum election. An enlisted accused may choose an all-officer panel or a panel with at least one-third enlisted representation — and under the current rules, if no election is made, the default panel may include both officers and enlisted members. See requesting enlisted members on your panel.
- Impanelment and alternates. Article 29 and R.C.M. 912A/912B use random numbering to seat the required members and any alternates from those the CA detailed; excess members are excused. Before assembly, excusal authority for up to one-third of the members can be delegated to the SJA. United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998). After assembly, excusal requires good cause on the record.
- Voir dire and challenges. Whatever the CA’s selections, both sides test the members in voir dire, with unlimited challenges for cause plus one peremptory challenge per side.
What panel members can do at trial
Court members are more active than civilian jurors. The rule is explicit:
“The court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.”R.C.M. 801(c)
Members may ask that witnesses be called or recalled — even after deliberations have begun — and may ask that the court be reopened or portions of the record be read back. R.C.M. 921(b); M.R.E. 614(a). A military judge who denies such a request without weighing the factors set out in United States v. Lampani, 14 M.J. 22 (C.M.A. 1982) — difficulty and delay, materiality, privilege, and the parties’ objections — abuses that discretion. For the defense, member questions are a live feed of what the panel is thinking, and both a risk and an opportunity.
Two guardrails on composition are worth knowing. Enlisted members may sit in the trial of an enlisted accused but never in the trial of an officer, and members should not be junior in rank to the accused when that can be avoided — though silence waives the objection, even where the defense discovered the junior member during deliberations and said nothing until after findings. United States v. Schneider, 38 M.J. 387 (C.M.A. 1993). The old rule barring enlisted members from the accused’s own company-sized unit was removed by the 2016 MJA; bias from proximity is now handled where it always really lived, in voir dire.
Excusals, alternates, and the paper trail
Panels change between the convening order and the verdict, and the rules track the timeline. Before assembly, the convening authority may excuse members, and may delegate to the SJA or a deputy the authority to excuse up to one-third of them. Even an over-delegation is reversible only if the defense objected at trial and can point to a lost challenge. United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998). After assembly, a member leaves only by challenge or for good cause shown on the record — a sleeping member qualifies; a routine medical appointment does not. R.C.M. 505(c)(2); United States v. Boswell, 36 M.J. 807 (A.C.M.R. 1993).
Replacement mechanics generate a startling share of appellate litigation, because the orders are drafted by busy staffs. The controlling distinction: administrative sloppiness — wrong order numbers, misfired “triggering mechanisms” for adding alternate members — is tested for plain error and usually forgiven absent objection, United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003); but a member sitting who was never selected by the convening authority at all is a jurisdictional defect no one can ratify after the fact. For the defense, the convening order and every amendment deserve a line-by-line read against who actually sat — and prompt objection, since silence converts most defects into waiver.
The military judge
Under the 2016 MJA the military judge is built into the definition of the court: no general or special court-martial can proceed without one. The judge must be a commissioned officer, a member of a federal or state bar, and certified by The Judge Advocate General for judicial duty. Article 26, UCMJ. Judges rule on motions and evidence, instruct the members, sentence in judge-alone cases, and — under the current rules — control the case from referral until entry of judgment, with pre-referral authority over certain matters under Article 30a as well.
Impartiality is the job description. R.C.M. 902 requires a judge to step aside whenever their impartiality might reasonably be questioned, and the case law polices everything from ex parte contacts to intemperate comments from the bench. The judge’s qualifications, recusal rules, courtroom powers, and post-trial authority are examined in The Military Judge: Role, Independence, and Powers.
What this means if you’ve just been told you’re going to trial
Every box on the chart above is a pressure point. Was the convening authority an accuser? Were the members really selected on Article 25 criteria — or by rank, by staff shortcut, or to send a message? Is the judge conflict-free? Is your detailed counsel conflict-free? These questions have to be asked early, because most of them are waived if nobody raises them at trial. An experienced defense team audits the personnel of your court-martial before it ever audits the evidence — talk to counsel before the players are locked in.
The lawyers: trial counsel and defense counsel
Both the prosecutor (trial counsel) and detailed defense counsel at a general court-martial must be judge advocates — law school graduates or bar members — certified as competent by their service’s Judge Advocate General. Article 27(b), UCMJ. Defense counsel must meet Article 27(b) standards at both general and special courts-martial; the government has slightly more flexibility with assistant trial counsel. In capital cases, at least one defense counsel must be “learned in the law” applicable to capital litigation.
Counsel can be disqualified — for conflicts of interest, for having acted as the accuser or Article 32 officer, or for prior representation on the other side of the same matter — and the ethics rules that govern them are surveyed in our guide to professional responsibility for military lawyers. What matters most to an accused is the defense side: the free detailed counsel, the right to request individual military counsel by name, and the right to hire a civilian defense lawyer. All three, and how they combine, are detailed in Your Right to Counsel: Detailed Military Counsel, IMC, and Civilian Defense Lawyers.
The accused: presence, forum, and self-representation
The accused is not a bystander in this cast. Three powers stand out:
- Forum selection. The accused — personally, not counsel — chooses trial by members, by a panel with enlisted representation, or by military judge alone. Courts test defects in how the choice was recorded for prejudice, because the underlying right is the choice itself. United States v. Alexander, 61 M.J. 266 (C.A.A.F. 2005). There is, however, no absolute right to a judge-alone trial; the judge may deny the request for stated reasons. United States v. Ward, 3 M.J. 365 (C.M.A. 1977).
- Presence. An accused who voluntarily absents themselves after arraignment can be tried in absentia. R.C.M. 804(c). The inference of voluntariness is the government’s friend — notice of the exact trial date is desirable but not required. United States v. Sharp, 38 M.J. 33 (C.M.A. 1993).
- Self-representation. An accused may proceed pro se, but only after the judge confirms the waiver of counsel is knowing and voluntary and that the accused understands the disadvantages. R.C.M. 506(d); United States v. Mix, 35 M.J. 283 (C.M.A. 1992). It is almost never wise.
These choices sit alongside the broader protections — silence, confrontation, due process — collected in Rights of the Accused in a Court-Martial.
Practitioner’s note
When we take a case, one of the first documents we pull is the convening order — then the amending orders, the member questionnaires, and the nomination memoranda behind them. Clients are surprised how often the personnel architecture, not the evidence, produces the first motion: a member who appears on the order but was never selected by the CA, a selection memo that quietly filtered by rank, a trial counsel who touched the case as an advisor before charges. The court-martial’s cast is assembled by people under time pressure, and the paperwork shows it. Read the paperwork first.
Frequently asked questions
Who are the people in a court-martial?
The convening authority creates the court and selects the panel; a military judge presides; trial counsel prosecutes; detailed military defense counsel — plus any individual military counsel or civilian lawyer — represents the accused; and the panel members (or the judge alone, if the accused elects) decide the case. Special trial counsel now control referral for certain covered offenses.
How many members sit on a court-martial panel?
For cases referred on or after 1 January 2019: eight members for a general court-martial (which may continue with as few as six after excusals), four for a special court-martial, and twelve in capital cases. A summary court-martial has no panel — it is a single officer and is not a criminal forum.
Is a court-martial panel the same as a jury?
No. Members are hand-selected by the convening authority under Article 25 criteria rather than drawn randomly, panels are smaller than civilian juries, conviction requires a three-fourths vote rather than unanimity in non-capital cases, and members may question witnesses and even request that witnesses be called.
Who decides whether my case goes to trial?
For most offenses, the convening authority decides after receiving legal advice, and for a general court-martial only after an Article 32 preliminary hearing and Article 34 advice. For covered offenses — including sexual assault and other serious crimes — that decision now belongs to independent special trial counsel rather than the commander.
Can the commander pick panel members who will convict me?
Not lawfully. The convening authority must select members believed best qualified on the Article 25 criteria. Selecting members to guarantee a conviction or a harsh sentence is court stacking — a form of unlawful command influence — and it has caused findings and sentences to be set aside. Voir dire and challenges exist to expose exactly that.
Do I get a say in who judges my case?
Yes, in two ways. You personally elect the forum — members, a panel with at least one-third enlisted representation if you are enlisted, or military judge alone. And through counsel you question the members in voir dire and remove them by challenge for cause or peremptory challenge; the military judge can likewise be challenged for disqualification.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has spent more than 25 years working every seat of the court-martial well — as an Army prosecutor, as an Army defense counsel, and for over two decades as a civilian defense lawyer trying cases before military judges and hand-selected panels worldwide. That vantage across the whole cast — convening authorities, judges, trial counsel, and members — informs how he audits the structure of a client’s court-martial before attacking its evidence. He is a nationally recognized author and instructor on trial advocacy.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has defended service members for more than 20 years in courts-martial across every branch — sexual assault, violent offense, war crimes, and white-collar cases — as well as administrative separation boards and Boards of Inquiry. She has litigated panel selection, judicial recusal, and counsel disqualification issues, and legally reviewed this guide against the current UCMJ, the Rules for Courts-Martial, and the case law cited.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.