A court martial is the term the military uses for criminal trials. The military has three levels of courts martial depending on the level of severity: Summary, Special and General, with General being the most serious level. The remainder of this article will focus on Special and General Courts Martial. For a discussion about Summary Court Martial, go here.
A commander or commanding officer orders a criminal case to a court martial. This is usually after an investigation has been completed and a the commander has received advice from a military attorney. Before a commander can order a case to a General court martial, that commander must first send the case to a hearing where the accused has the right to attend, with counsel, and present evidence in his or her defense. This hearing, called an Article 32 hearing, can be waived by the accused.
After an alleged crime has been committed, an investigation usually begins. During this investigation, if the commander believes that the accused will commit further misconduct or not appear at trial, the commander can order that the accused be placed in restriction or even pretrial confinement. Any pretrial confinement will be served in the military’s Brig or confinement facility. If this happens, the accused has the right to a hearing before a neutral military officer to determine if the commander’s decision was reasonable. The accused has a right to have an attorney assist them at this hearing. If the accused does serve pretrial confinement and is later sentenced to any jail time, time served in pretrial confinement will be credited towards any sentence to jail.
No, there is no bail in the military criminal process.
These are the stages of a Special or General Court Martial. Each process is discussed in further detail below:
1. Assignment of Attorney
3. Discovery and investigation
5. Plea Negotiations
1. ASSIGNMENT OF ATTORNEY
After the investigation is concluded and the commander has ordered the case to a court martial, the local military legal office will assign an active duty military defense counsel to assist you for free. This free attorney is assigned to all active duty members ordered to court martial–rank or income does not matter.
Although most legal offices won’t provide you a free lawyer until after the court martial has been ordered, servicemembers who learn that they are under investigation should seek IMMEDIATE legal assistance before making any statements or decisions. Those under investigation can either go to the legal office and seek help or call a civilian military attorney. At King Military Law, we are available 24/7 to provide free initial assistance to those being investigated. If you ever get involved on a martial process don’t hesitate to get assistance from this professional court martial lawyer.
At arraignment, you will appear at a hearing before a military judge with your defense attorney where you will be formally notified of the charges against you and asked to enter a plea. In most cases, your defense attorney will advise you to plead “not guilty” and request a jury trial. You’ll have the chance to change your plea later, if you decide that is best. Until then, a “not guilty” plea preserves all of your rights and gives your legal team the chance to conduct their own investigation, review “discovery” and help you decide whether or not to go to trial.
3. DISCOVERY AND INVESTIGATION
“Discovery” is the process of getting evidence and information from the other side in a court case. Before trial, the prosecution is required to turn over all evidence it has against the accused or that it plans to use at trial. During this process, your defense team will receive the government’s investigation against you.
Independent of the discovery process, your legal team SHOULD explore whether you have any possible defenses. They will also explore other issues that could affect your case. A good defense investigation can often result in favorable evidence for use during negotiations with the commander or during trial and is a CRUCIAL aspect of your attorney’s job. The military defense offices employ some investigators and the military judge can order the government to assign an investigators to your case if your attorney can convince the judge that justice requires that. At King Military Law, we utilize seasoned private investigators who are recently retired law enforcement detectives and retired FBI agents. Any tests you need or experts to assist your defense will be paid for by the government.