Military Law Frequently Asked Questions
- Experience: Any civilian lawyer with 20 plus years of criminal defense experience will dwarf any military prosecutor or defense lawyer in terms of experience. Years of trial experience and skill are the most important factors when hiring a civilian lawyer. Twenty years versus five years in the courtroom is a big difference.
- Not subject to the chain of command: A civilian defense lawyer is not subject to the chain of command, the SJA, or the Department of Defense. If the civilian defense lawyer is still in the military (Reserve or Guard), then they may not be 100% free of the chain of command. Being free from the command allows a civilian lawyer to fight the Government without fear or burning bridges or making enemies.
- Rank matters: The Military Judge, the Command, and the jury always outrank the accused. In the military, rank matters. Free military defense lawyers are often pushed around by the command, the SJA, the Chief of Military Justice, and the Judge. An aggressive military defense lawyer who’s not subject to rank is critical to a winning defense.
- No turnover of counsel: It is common for appointed military defense lawyers to leave the military or transfer to another duty station while they are representing a service member. If this happens, a new lawyer will be assigned and will literally be starting from scratch as your lawyer.
Winning a sexual assault court-martial can be challenging. Juries tend to side with alleged sexual assault victims. In the military, service members are trained to “believe the victim.” They are taught that false allegations of sexual assault do not exist. To win a sex crime case in the military, your defense lawyer can focus on several key areas:
- Consent: The prosecution must prove beyond a reasonable doubt that there was no consent. A skilled defense lawyer can present evidence to show that consent existed or create doubt about whether there was consent. Usually, this is done by a skillful cross-examination of the victim and law enforcement.
- Mistake of fact as to consent: If there is evidence that sexual contact occurred between the victim and the accused and that the accused had an honest and reasonable belief that the victim consented, the jury must find the accused not guilty. The state of mind of the accused, at the time, is crucial to this defense. Once there is evidence raised that a mistake of fact may have existed in the mind of the accused, then the prosecution must prove beyond a reasonable doubt that the mistake did not exist.
- Alibi: Alibi is a defense where the defense shows that the accused could not have committed the offense because he was elsewhere and not at the crime scene. The defense needs evidence to support this defense.
- Motive to fabricate: The defense can show that the victim has a motive to fabricate, mislead, or exaggerate the allegations for various reasons, such as revenge, monetary gain, for sympathy, or to avoid being punished for her own misconduct.
- Attack the credibility of the witnesses: Another way to win a sexual assault case in the military is to discredit the government’s witnesses on cross-examination. A skilled defense lawyer must attack the memory, motive, bias, truthfulness, and credibility of prosecution witnesses.
- Create reasonable doubt: In a court-martial, the prosecution must prove their case beyond a reasonable doubt. The defense can create doubt by attacking the weaknesses in the prosecution’s case. This is done in opening and closing arguments and on cross-examination of the prosecution’s witnesses. The accused, if credible and well-prepared, can also create doubt by testifying in his defense.
In the military justice system, a court-martial follows procedures outlined in the Uniformed Code of Military Justice. All branches of service in the US military follow the same rules and procedures. Below are the general steps of a court-martial:
- Preferral and Referral of Charges: The first steps in a court-martial are the preferral and referral of charges. If the case is a General court-martial, then an Article 32 investigation is conducted before referral of charges.
- Arraignment: After the referral of charges, a Military Judge is assigned to the case. The judge sets deadlines. Then, the judge arraigns the accused and sets a trial date. At an arraignment, the accused enters pleas (guilty or not guilty) and selects a forum (judge or jury). Before trial, there is a motion session.
- Voir Dire: At the trial, the first step is Voir Dire. Voir Dire is called panel or jury selection.
- Opening Statements: Next come the opening statements by the prosecution and defense.]
- Presentation of the evidence: Following openings, the Government presents its case in chief. The defense may cross-examine prosecution witnesses. When the prosecution rests their case, the defense may present evidence (if they want to). If the defense presents evidence, the Government may present a case in rebuttal.
- Jury Instructions: After the presentation of evidence, the Military Judge instructs the jury on the law to apply to the evidence.
- Closing Arguments: Next, the prosecution and defense give closing arguments.
- Jury Deliberations: The panel then deliberates in a closed session. They vote by secret written ballot on all of the charges. After they reach a verdict, the verdict is announced in open court.
- Sentencing Proceedings: If there is a guilty verdict on any charge, the court immediately moves into a sentencing hearing. Here, both sides may present evidence and argument in mitigation and aggravation. After the judge or jury decides on a sentence, the sentence is announced.
It depends. In the military, the typical felony-level criminal investigation lasts six months to a year. In more complex cases, an investigation can last a year or more. When an investigation is finished, it could take several weeks or even months to decide whether to prefer criminal charges.
If charges are preferred, the case will likely go to trial in the next 4-6 months. A significant factor impacting how long it takes to get a case to trial is the availability of the defense lawyers, the Military Judge, and witnesses.
A typical court-martial trial lasts 4-5 days. This depends on the case’s complexity, the number of witnesses, and whether a judge or jury will decide the case. In addition, some judges and lawyers are more efficient than others. Regardless, a court-martial trial rarely lasts longer than one week.
Yes. If you are convicted at a General or Special court-martial, the conviction will likely go on your criminal record. Depending on the type of court-martial and the exact charges, they may appear as Federal felony convictions or misdemeanors. Some military-specific crimes with no civilian equivalent may or may not appear as Federal convictions on a state arrest record. However, as a general rule, assume that all General and Special court-martial convictions will appear on a criminal background check.
Yes. Court-martial proceedings are criminal proceedings that are open to both the general public and military service members. Like state and federal criminal trials, the public can watch nearly all parts of a court-martial proceeding. The main challenge civilians face when wanting to watch a court-martial is getting access to the military installation. Most installations require a base pass and/or an escort to enter the installation. If you are a civilian without a military ID, you should coordinate through the JAG office or the Public Affairs Office. Plan ahead and be prepared to jump through some hoops to gain access. However, there are a few exceptions to this rule. Certain parts of a court-martial are closed to the public. For example, a hearing to determine the admissibility of a sexual assault victim’s sexual behavior under Military Rule of Evidence 412 (the Rape Shield Law) is closed to the public, and the record is sealed. The media is allowed to watch court-martial proceedings. The media is usually required to contact the installation’s Public Affairs Office to coordinate access to the court-martial.
A general court-martial can adjudge the following punishments:
- Forfeitures of up to all pay and allowances
- Reduction to the lowest enlisted pay grade
- Punitive discharge (bad-conduct discharge, dishonorable discharge, or dismissal)
- For certain offenses, death. A sentence of confinement over ten years may only be adjudged with the concurrence of three-fourths of all court-martial members. A death sentence requires a unanimous decision of the jury.
A special courts-martial can adjudge the following punishments:
- Confinement for one year (only enlisted soldiers)
- Hard labor without confinement for up to three months
- Forfeiture of two-thirds pay per month for up to one year
- Reduction to the lowest pay grade (enlisted members only)
- Bad-conduct discharge (enlisted members only)
- Summary Courts-Martial
A summary court-martial can adjudge the following punishments:
- 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
- Reduction to the lowest pay grade.
- If an enlisted member is above the pay grade of E-4, the summary court-martial may not adjudge confinement or hard labor without confinement. It can only reduce the servicemember to the next lower pay grade.
Possibly, yes. It depends on the crime and level of court-martial. The military, unlike civilian courts, does not label offenses as “felonies” or “misdemeanors.” However, federal and most state laws define a “felony” as “any crime punishable by imprisonment in excess of one year or death.” Therefore, most General court-martial convictions would be considered felonies.
Felony level offenses in the military include:
- Rape and Sex Crimes
- Larceny of Government Property
- Child Pornography
- Identity Theft
- Aggravated Assault
- BAH Fraud, and many others
Very bad. A military court-martial is a serious criminal proceeding that can severely alter and potentially destroy your life as you know it. Many people do not understand how bad a court-martial conviction can be until it is too late.
There are three types of court-martial. The most serious is a General court-martial, the equivalent of a Federal Felony trial. The maximum punishments are life without parole, death, and a dishonorable discharge. A Special court-martial carries a maximum punishment of one year in prison and a Bad Conduct Discharge. A Summary Court-martial is the least serious court-martial and generally does not result in a Federal conviction.
If convicted at a General or Special court-martial, you will have a Federal conviction on your record. Also, you may not be able to possess a firearm or vote, and your job opportunities will be severely limited. A court-martial conviction cannot be expunged from your record. In summary, when someone asks, “How bad is a court martial?” The answer is simple. It can be very bad. The only way to limit and avoid some of these repercussions is to get the best legal representation possible as you go through the process.
A court-martial conviction may result in serious life-altering consequences. In addition to the punishment given by the court-martial, the accused can suffer from lifelong collateral consequences as a result of the conviction.
A General court-martial can sentence the accused to the following punishments:
- Dishonorable or Bad Conduct Discharge, Dismissal
- Jail time, up to life without the possibility of parole. Note: Death is authorized for some offenses.
- Reduction to E-1
- Extra duty
- Hard labor without confinement
- Forfeiture of all pay and allowances
- Monetary fine
- No punishment
- Sex offender registration (Federal and State)
- Employment will be severely limited (many employers won’t hire a convict)
- Inability to enroll in college, university, or trade school
- Loss of GI Bill
- Loss of military career
- Loss of retirement benefits.
- Loss of VA benefits.
- Loss of medical benefits.
- Loss of spouse, family members, and friends
- Loss of income while in jail
- Mental, physical suffering before and after prison
Sex offender registration often includes the following:
- Limits on where you can live, work, shop, eat.
- Cannot go to parks, playgrounds, schools, churches, fairs, malls, etc.
- Cannot own a computer or cell phone.
- No internet access.
- Not allowed to be around children, including family members, children of your family members, and friends.
- For example, going to Christmas dinner with a brother’s family (if he has kids) will probably trigger additional charges and jail time. Most convicted sex offenders end up back in prison because they violate strict sex offender rules, not because they commit other sex crimes.