Courts-martial are adversarial proceedings governed by the Uniform Code of Military Justice (UCMJ) and the Military Rules of Evidence. Military lawyers of the respective service Judge Advocate General’s Corps (JAG) represent the government and military lawyers are appointed to represent the accused. Most importantly, the accused can also hire a civilian lawyer of his/her own choosing to represent them.
The lawyers must follow military rules of procedure and evidence as allowed by the presiding judge. During these trial proceedings, the military judge decides questions of law. In non-capital cases, the accused may request to be tried by the military judge alone or by a panel of officers or officers and enlisted members (if the accused is a warrant officer or enlisted member).
There are three levels of courts-martial: Summary (which can confine junior enlisted to up to 30 days), Special (which, depending on the charges, can confine an accused up to a year and give a bad-conduct discharge to enlisted) and General (which, depending on the charges, can sentence an accused to death or life imprisonment, and give a bad-conduct or dishonorable discharge or a dismissal to officers). Officers are not tried at summary courts-martial and enlisted members have an absolute right to refuse summary court.
General courts-martial require a neutral investigating officer to hold an Article 32 hearing to review the government’s evidence of the alleged crime. The primary purpose of the Article 32 is to “inquire into the truth of the matters set forth in the charges, the form of the charges, and to secure information on which to determine what disposition should be made of the case.” What it means is that the hearing is meant to evaluate the evidence that supposedly supports the allegations, to look at how the allegations were charged and whether they were charged correctly, and to recommend what to do with the case. In the Air Force and Navy the Investigating Officer is usually a JAG officer, while in the Army it is usually a non-lawyer. The accused is present and has the right to have his/her attorney present. During the Article 32 hearing, the Accused and his lawyer have the right to review evidence, cross-examine witnesses, and present their own evidence.
There are several potential defense strategies in an Article 32. One is to “litigate” the Article 32 hearing. This means to essentially act as though it is a trial, cross-examining government witnesses, calling defense witnesses, and presenting other evidence in an attempt to end the case right there and prove that a charge should not be referred to trial. Another Article 32 strategy is for the defense to call no witnesses and produce no evidence, but to cross-examine government witnesses to lock them into their testimony. This means that if they change their testimony at trial, the Article 32 testimony can be used against them. A third Article 32 strategy is for the defense to remain quiet throughout the hearing – no cross-examinations, calling no witnesses, and presenting no evidence. The government must present a case; therefore, the defense benefits from discovering the strengths and/or weaknesses of the government’s case. As a result, the government does not get any opportunity to see how the defense intends to approach the case, its strategy, how it will question government witnesses, or what its rebuttal evidence the Defense has.
At the completion of the hearing, the investigating officer prepares a report and sends the report with recommendations to the convening authority. An Investigating Officer can make many different recommendations. For instance, the Investigating Officer can recommend that the case proceed to a general court-martial, that charges be amended or added, that the case proceed to special court-martial, that alternative dispositions (such as administrative discharge, resignation, or Article 15) be considered, or that the case be dropped altogether.
The Convening Authority is tasked to decide what action to take after reviewing the Article 32 Report. The charges may be dismissed or disposed of at a lower level, and include actions such as administrative reprimands, summary courts-martial, nonjudicial punishment, or administrative separation. In addition, the convening authority may refer the charge(s) to a general court-martial.
If you get sentenced to a Bad Conduct or Dishonorable Discharge your case will be automatically appealed to the appropriate service Court of Criminal Appeals in Washington D.C. After that, a petition for review can also be filed with the U.S. Court of Appeals for the Armed Forces. Under very rare circumstances, even the U.S. Supreme Court could hear your case. You would get the same automatic review of your case if the sentence includes confinement for one year or more. If you feel that the result of your court-martial was unjust, then you may hire a civilian lawyer to appeal your case to the appropriate court.