This is a brief general overview of the process for a “contested” Special or General Court Martial, meaning you plead not guilty and contest the charges.
1. Preferral of Charges
When charges are officially brought against you, it is called the “preferral of charges” or simply the “preferral.” You will typically sign a form acknowledging that you have received the charges. The charge sheet will then be routed through the chain of command for recommendations as to the level of court martial you should be tried by and the basic evidence against you will be sent to your attorney. After your attorney has reviewed the evidence, you will consult with him/her regarding your defense and options going forward.
Jurisdiction Over Reservists
The military has jurisdiction over misconduct committed by reservists while drilling, Annual Training, during travel to the drill site, intervals between consecutive drills on the same day, and intervals between consecutive drill days. If a reservist is accused of committing misconduct in one of these statuses, commanders can mobilize the reservist for the purpose of being tried by court martial.
2. Article 32 (General Court Martial Only)
If the Special Court Martial Convening Authority (typically the O-6 level commander) recommends that your case be tried by General Court Martial, s/he will order that an Article 32 Preliminary Hearing be held and will appoint a Preliminary Hearing Officer (PHO). At the hearing, the Trial Counsel (military prosecutor) will present the evidence against you to the PHO. Although witnesses may be called, the Government typically only submits the Report of Investigation to the PHO. This is because the burden of proof is Probable Cause, a standard that the Government considers to be very low. Your defense attorney will represent you at the hearing. The PHO then makes recommendations to the convening authority about whether there is Probable Cause that an offense was committed, and whether you committed it. The PHO will also determine whether the military has jurisdiction over the charges, and whether the charges are in proper form.
Even if the PHO determines there is no Probable Cause and that you should not be tried by court martial, it is only a recommendation. The Government may ignore the recommendation (and most likely will) and take you to trial anyway.
3. Referral of Charges
After the charge sheet has been routed through the chain of command for recommendations, the Convening Authority will order your case to be tried by court martial. This is called the “referral of charges,” or simply the “referral.” The Special Court Martial Convening Authority (SPCMCA) is a commander in the grade of O-6 and above, although authority to actually convene a SPCM is commonly withheld by the General Court Martial Convening Authority (GCMCA). A GCMCA is typically the Commanding General or Admiral. If your case is referred to a Special or General Court Martial, the military judge will be notified, and your arraignment will be scheduled.
The arraignment is a brief hearing before the military judge, who will ensure that you are notified of the nature of the charges. S/he will inform you of your rights and ask you who you want to represent you, and how you wish to be tried (by judge alone or by panel). S/he will also ask how you plead (guilty or not guilty). Your attorney will enter your plea. Afterwards, the military judge will schedule when motions will be filed and argued, as well as your actual trial date. Although you will not be tried on the same day as the arraignment, this is when “trial” is technically considered to begin.
There may be legal issues with your case that must be addressed with pre-trial motions. Examples include motions to compel witnesses and evidence, or motions to suppress statements and evidence. Attorneys from both sides will draft the motions and argue in front of the military judge, who will decide on the issues presented.
Depending on the circumstance and your election, your case may be tried by a panel or by judge alone. A panel trial begins with “voir dire” which is the process by which panel members are selected. Prospective panel members will be questioned regarding potential for bias. Afterward, counsel from both sides will have the opportunity to challenge members they believe will be biased by asking the military judge to excuse them. The military judge will hear argument, make the decision on challenges, and seat the panel.
After the panel is seated, counsel from both sides will make an opening statement. The Government will then present its case. The Trial Counsel will present evidence against you pursuant to the Rules of Evidence and the limitations imposed by the military judge’s ruling on motions. Witnesses will be called, and documents and videos may be admitted into evidence. Your defense attorney will cross examine the witnesses against you and make objections when warranted.
After the Government presents its case, your attorney will have the opportunity to present a case in your defense. Your attorney may call witnesses and present other evidence. The Trial Counsel will cross examine defense witnesses and make objections when warranted. After the defense presents its case, the Government will have the opportunity to rebut it since it is their burden to prove your guilt. After both the Defense and Government rest, the panel will deliberate on their findings. If you are found guilty on any charge, the case will move directly to pre-sentencing.
At the pre-sentencing hearing, the Government will introduce any matter that aggravates the offense(s) you were found guilty of. This may be the impact the offense(s) had on others, damage to unit readiness or cohesion, etc. The Government may also introduce prior records of punishment and call witnesses to indicate your lack of “rehabilitative potential.” Typically this will be a unit commander or other supervisor in the chain of command.
After the Government presents its sentencing case, your attorney will present matters in mitigation and extenuation. These matters may show circumstances of the offenses which make them less severe when considered as a whole, and why the punishment should be light. You will be able to call character witnesses, and present other evidence. After both sides have presented their case, the panel will deliberate on sentencing. Each offense carries a maximum allowable penalty.
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