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The Constitution specifically exempts military members accused of a crime from the Fifth Amendment right to a grand jury indictment. Based upon this exemption, the Supreme Court has inferred there is no right to a civil jury in courts-martial. See Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). Despite this exemption, the military justice system has created, in most instances, equal if not greater procedural protections for military members. For instance, Congress has, in Article 32, UCMJ, provided for a pretrial hearing that performs the same basic function as a grand jury. However, the Article 32 has the added benefit of allowing the accused to call witnesses, present evidence, and cross examine the witnesses against her.

Below are the various procedural safeguards for an accused in a court-martial.

Presumption of Innocence

“The principle that there is a presumption of innocence in favor of the accused is undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453 (1895)

If the accused fails to enter a proper plea, a plea of not guilty will be entered. R.C.M. 910(b).

Members of a court-martial must be instructed that the “accused must be presumed to be innocent until the accused’s guilt is established by legal and competent evidence beyond a reasonable doubt.” R.C.M. 920(e).

The accused shall be properly attired in uniform with grade insignia and any decorations to which entitled. Physical restrain shall not be imposed unless prescribed by the military judge. R.C.M. 804

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Right to Remain Silent

“No person … shall be compelled in any criminal case to be a witness against himself ….” Amendment V.

Coerced confessions or confessions made without statutory equivalent of Miranda warning are not admissible as evidence. Article 31, UCMJ, 10 U.S.C. § 831.

The trial counsel must notify the defense of any incriminating statements made by the accused that are relevant to the case prior to the arraignment. Motions to suppress such statements must be made prior to pleading. M.R.E. 304.

Freedom from Unreasonable Searches & Seizures

“The right of the people to be secure … against unreasonable searches and seizures, shall not be violated; no Warrants shall issue, but upon probable cause…” Amendment IV.

“Evidence obtained as a result of an unlawful search or seizure … is inadmissible against the accused …” unless certain exceptions apply. M.R.E. 311.

“Authorization to search” may be oral or written, and may be issued by a military judge or an officer in command of the area to be searched, or if the area is not under military control, with authority over persons subject to military law or the law of war. It must be based on probable cause. M.R.E. 315.

Interception of wire and oral communications within the United States requires judicial application in accordance with 18 U.S.C. §§ 2516 et seq. M.R.E. 317.

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

Assistance of Effective Counsel

“In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of military defense lawyers for his defense.” Amendment VI.

The accused has a right to military lawyers at government expense. An accused may choose individual military lawyers, if that attorney is reasonably available, and may hire a civilian attorney in addition to military lawyers. Article 38, UCMJ, 10 U.S.C. § 838.

Appointed court-martial defense lawyers must be certified as qualified and may not be someone who has taken any part in the investigation or prosecution, unless explicitly requested by the accused. Article 27, UCMJ, 10 U.S.C. § 827.

The military recognizes an attorney-client privilege. M.R.E. 502.

Right to Indictment and Presentment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ….” Amendment V.

The right to indictment by grand jury is explicitly excluded in “cases arising in the land or naval forces.” Amendment V.

Whenever an offense is alleged, the commander is responsible for initiating a preliminary inquiry and deciding how to dispose of the offense. R.C.M. 303-06.

Prior to convening a general court-martial, a pretrial investigation must be conducted. This investigation, known as an Article 32 hearing, is meant to ensure that there is a basis for prosecution. R.C.M. 405(a).

Right to Written Statement of Charges

“In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; …” Amendment VI.

Charges and specifications must be signed under oath and made known to the accused as soon as practicable. Article 30, UCMJ, 10 U.S.C. § 830

Right to be Present at Trial

The Confrontation Clause of Amendment VI guarantees the accused’s right to be present in the courtroom at every stage of his trial. Illinois v. Allen, 397 U.S. 337 (1970).

The presence of the accused is required during arraignment, at the plea, and at every stage of the court-martial unless the accused waives the right by voluntarily absenting him or herself from the proceedings after the arraignment or by persisting in conduct that justifies the trial judge in ordering the removal of the accused from the proceedings. R.C.M. 801.

Prohibition against Ex Post Facto Crimes

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“No … ex post facto law shall be passed.” Art. I, § 9, cl. 3.

Courts-martial will not enforce an ex post facto law, including increasing amount of pay to be forfeited for specific crimes. United States v. Gorki, 47 M.J. 370 (C.A.A.F. 1997).

Protection against Double Jeopardy

“… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; …” Amendment V.

Subject to “dual sovereign” doctrine, that is, federal and state courts may prosecute an individual for
the same conduct without violating the clause.

Double jeopardy clause applies. See Wade v. Hunter, 336 US 684, 688-89 (1949).

Article 44, UCMJ prohibits double jeopardy, provides for jeopardy to attach after introduction of evidence. 10 U.S.C. § 844.

General court-martial proceeding is considered to be a federal trial for double jeopardy purposes. Double jeopardy does not result from charges brought in state or foreign courts, although court-martial

in such cases is disfavored. United States v. Stokes, 12 M.J. 229 (C.M.A. 1982).

Once military authorities have turned service member over to civil authorities for trial, military may have waived jurisdiction for that crime, although it may be possible to charge the individual for another crime arising from the same conduct. See 54 AM. JUR. 2D, Military and Civil Defense §§ 227-28.

Speedy & Public Trial

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ….” Amendment VI.

In general, accused must be brought to trial within 120 days of the preferral of charges or the imposition of restraint, whichever date is earliest. R.C.M. 707(a).

The right to a public trial applies in courts-martial but is not absolute. R.C.M. 806.

The military trial judge may exclude the public from portions of a proceeding for the purpose of protecting classified information if the prosecution demonstrates an overriding need to do so and the closure is no broader than necessary. United States v. Grunden, 2 M.J. 116 (CMA 1977).

Burden & Standard of Proof

Due Process requires the prosecution to prove the defendant guilty of each element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970).

Members of court martial must be instructed that the burden of proof to establish guilt is upon the government and that any reasonable doubt must be resolved in favor of the accused. R.C.M. 920(e).

Privilege Against Self- Incrimination

No person subject to the UCMJ may compel any person to answer incriminating questions. Article 31(a) UCMJ, 10 U.S.C. § 831(a).

“No person … shall be compelled in any criminal case to be a witness against himself…” Amendment V.

Accused may not be compelled to give testimony that is immaterial or potentially degrading. Article 31(c), UCMJ, 10 U.S.C. § 831(c).

No adverse inference is to be drawn from an accused’s refusal to answer any questions or testify at court-martial. M.R.E. 301(f).

Witnesses may not be compelled to give testimony that may be incriminating unless granted immunity for that testimony by a general court-martial convening authority, as authorized by the Attorney General, if required. 18 U.S.C. § 6002; R.C.M. 704.

Right to Examine or Have Examined Adverse Witnesses

“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him; ….” Amendment VI.

Hearsay rules apply as in federal court. M.R.E. 801 et seq.

In capital cases, sworn depositions may not be used in lieu of witness, unless court-martial is treated as non-capital or it is introduced by the defense. Article 49, UCMJ, 10 U.S.C. § 849.

Right to Compulsory Process to Obtain Witnesses

“In all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor, ….” Amendment VI.

An accused has the right to compel appearance of witnesses necessary to their defense. R.C.M. 703.

Process to compel witnesses in a court-martial is to be similar to the process used in federal courts. Article 46, UCMJ, 10 U.S.C. § 846.

Right to Trial by Impartial Judge

“The Judicial Power of the United States, shall be vested in one supreme Court, and in … inferior courts …. The Judges … shall hold their Offices during good behavior, and shall receive … a compensation, which shall not be diminished during their continuance in office.” Article III § 1.

A qualified military judge is detailed to preside over the court-martial. The convening authority may not prepare or review any report concerning the performance or effectiveness of the military judge. Article 26, UCMJ, 10 U.S.C. § 826.

Article 37, UCMJ, prohibits unlawful influence of courts-martial through admonishment, censure, or reprimand of its members by the convening authority or commanding officer, or any unlawful attempt by a person subject to the UCMJ to coerce or influence the action of a court-martial or convening authority. Article 37, UCMJ, 10 U.S.C. § 837.

Right to Trial By Impartial Jury

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; ….” Art III § 2 cl. 3.

“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury of the state ….” Amendment VI.

A military accused has no Sixth Amendment right to a trial by petit jury. Ex Parte Quirin, 317 U.S. 1, 39-40 (1942) (dicta).

However, “Congress has provided for trial by members at a court-martial.” United States v. Witham, 47 MJ 297, 301 (C.A.A.F. 1997); Article 25, UCMJ, 10 U.S.C. § 825.

The Sixth Amendment requirement that the jury be impartial applies to court-martial members and covers not only the selection of individual members, but also their conduct during the trial proceedings and the subsequent deliberations. United States v. Lambert, 55 M.J. 293 (C.A.A.F. 2001).

Right to Appeal to Independent Reviewing Authority

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” Article I § 9 cl. 2.

The writ of habeas corpus provides the primary means by which those sentenced by military court, having exhausted military appeals, can challenge a conviction or sentence in a civilian court. The scope of matters that a court will address is narrower than in challenges of federal or state convictions.

Burns v. Wilson, 346 U.S. 137 (1953).

However, Congress created a military court with all civilian justices (non-military retirees), the Court of Appeals for the Armed Forces, to review military cases.

Protection against Excessive Penalties

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII.

Death may only be adjudged for certain crimes where the accused is found guilty by unanimous vote of court-martial members present at the time of the vote. Prior to arraignment, the trial lawyers must give the defense written notice of aggravating factors the prosecution intends to prove. R.C.M. 1004.

A conviction of spying during time of war under Article 106, UCMJ, carries a mandatory death penalty. 10 U.S.C. § 906.

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