COURT-MARTIAL
A tribunal that tries violations of military CRIMINAL
LAW. It often refers to the entire military justice
process, from actual court proceedings to
punishment.
First established in eighteenth-century U.S.
law, the court-martial is today the result of
tremendous modernization that has made it
similar to a trial in federal district court. Defendants
are presumed innocent until proven
guilty, accorded considerable legal protections,
and guaranteed the right to appeal. The courtmartial
is governed by the UNIFORM CODE OF
MILITARY JUSTICE (10 U.S.C.A. §§ 801–940), a
federal law that Congress originally passed in
1950, but that legislators, presidents, and the
U.S. Supreme Court have since changed several
times. Significant reforms of the court-martial
now grant military defendants essentially the
same DUE PROCESS rights that are afforded
defendants in civilian courts.
The Uniform Code of Military Justice vests
in the president of the United States the
authority to draft and to amend the Manual for
Courts-Martial, United States (10 U.S.C.A. §§
801-946). This document includes a number of
procedural rules in the military justice system,
including the Rules for Courts-Martial and
Military Rules of Evidence. These rules are
practiced by judge advocates, who serve as the
attorneys in the military justice system. While
many of the rules are similar or analogous to
procedural rules in the civil justice system, such
as the Federal Rules of Criminal Procedure and
the FEDERAL RULES OF EVIDENCE, the military
rules provide specific rights and procedures
that do not have civil counterparts. In 1998,
President WILLIAM JEFFERSON CLINTON
approved several amendments to the Manual,
including those related to pre- and post-trial
confinement, trials, sentencing, substantive
criminal offenses and defenses, post-trial procedures,
and the authority of the Judge Advocate
General.
Three levels of courts exist in the military
justice system: military trial courts, courts of
military review, and the U.S. Court of Military
Appeals. Courts-martial are handled by the lowest
courts, which are presided over by military
trial judges who are quite similar to U.S. district
court judges. These judges are commissioned
officers selected by judge advocates according
to rules established by Congress, and their
responsibility for individual cases begins and
ends with the court-martial process. The military
trial courts are organized by the type of
courts-martial that they address—summary,
special, and general, which reflect increasingly
serious charges and punishments.
Just as trials in civilian criminal courts are
the result of work by police officers and prosecutors,
courts-martial are preceded by a formal
investigation. During questioning, military
suspects have the same FIFTH AMENDMENT
right to remain silent, as do civilians, as well as
some additional rights. Civilian police officers must read a suspect the Miranda rights at the
time of arrest. Article 31 of the Uniform Code
of Military Justice requires military investigators
to go even further: As soon as suspicion
focuses on a suspect during interrogation, they
must advise him or her of the right to remain
silent. This stringent requirement places a
higher burden on military investigators to protect
suspects’ rights, and later it can become
grounds for the dismissal of charges if it is not
followed.
Military laws provide generous protections
to defendants before a case goes to trial. These
include complete pretrial discovery, allowing
defendants free access to witnesses and evidence,
as well as a requirement that prosecutors reveal
the names of witnesses who will be called during
all stages of the trial. In addition, the government
must provide defendants with expert witnesses
at its own expense; judges may delay or
dismiss trials if prosecutors fail to do so. The
military judge is empowered to hear pretrial
motions on a broad range of issues, ranging
from alleged violations of the defendant’s constitutional
rights to the admissibility of evidence.
Before the case is heard, defendants have
the choice of trial by judge or jury, and enlisted
members can request that at least one-third of
the court be enlistees. Defendants may also elect
to be provided with military counsel or to hire a
civilian attorney.
The court-martial closely resembles a trial in
federal court. Military judges have the same
authority as federal judges to rule on all matters
of law and to give orders to the prosecution and
the defense on such procedural matters as arguments,
motions, and challenges. Two differences
are particularly significant. First, whereas few
civilian courts allow jurors to pose questions to
witnesses, military courts have long permitted
the practice. Jurors may submit written questions,
which both the prosecution and the
defense read in order to prepare any possible
objections, which also must be in writing. The
judge then decides which questions to allow.
Second, military judges have a greater duty than
do federal judges to review a defendant’s entry
of a guilty plea. This duty is designed to protect
defendants from PLEADING guilty because of
coercion, which could be more likely in the military
because of its strict code of discipline and
obedience to authority. MILITARY LAW requires
judges to reject the plea at any stage of a proceeding
if any hint of coercion is found.
The right to appeal convictions in military
courts is different from that in civilian courts.
Options for appeal are determined by the type
of court-martial: Summary court-martial convictions,
which are for lesser offenses, offer
only the right to appeal to the commander
who convened the court, and to make a further
petition for review to the judge advocate general.
Convictions in special and general courtsmartial
can be appealed to higher authorities,
but the type of sentence handed down also
governs a convicted party’s rights. If the sentence
is less than six months’ confinement or a
bad-conduct discharge, the case is reviewed by
a legal officer in the convening authority’s staff
judge advocate’s office, with no further appeals
other than a right to petition the judge advocate
general.
Greater convictions are automatically
appealed to a court of military review, which
considers matters of fact and law. Consisting
largely of higher-ranking military judges, these
courts exist for each branch of the military and
have a total of 31 appellate military judges. The
Uniform Code of Military Justice requires them
to review serious sentences such as confinement
of one year or more, dishonorable discharge, or
dismissal of officers or cadets. Sentences to general
officers and flag officers are also reviewed
automatically. In all cases, defendants are
granted free counsel for their appeals.
At the next level, the Court of Military
Appeals—composed of five civilian judges who
are appointed by the president of the United
States—may decide to hear any petition from an
unsuccessful appeal to a court of military
review.
Finally, once military remedies have been
exhausted, federal courts, including the U.S.
Supreme Court, will review a court-martial conviction
for claims of denial of constitutional
rights.
FURTHER READINGS
Ferris, Andrew M. 1994. “Military Justice: Removing the
Probability of Unfairness.” University of Cincinnati Law
Review (fall).
Fuger, Stanley T. 1992. “Military Justice: Variation on a
Theme.” Connecticut Bar Journal (June).
Konecke, Eric J. 1995. “The Appointments Clause and Military
Judges.” Seton Hall Constitutional Law Journal
(spring).
Wiener, Frederick B. 1990. “American Military Law in the
Light of the First Mutiny Act’s Tricentennial.” Military
Law Review (fall).
Any Last Words? The Evolution of the Court-Martial
Throughout most of its two-hundred-
year history, the court-martial
was the ogre of U.S. law.Modeled on sixteenth-
century European ideas about discipline
and punishment, courts-martial
worked smoothly. Commanders ran
them, defendants had few rights, and
punishments were ARBITRARY: disobedient
soldiers were fined, jailed, or discharged,
and deserters flogged or hanged.
CONSTITUTIONAL LAW rarely got in
the way. Between 1775 and 1950, the U.S.
military scarcely altered its methods. It
was not until the VIETNAM WAR era that
reform came at the hands of federal lawmakers
and judges. Today, the military
tribunal resembles the average
federal court.
Historically, the military
justice system has always been
distinct from the civilian court
system. It formally began in
1775 when the CONTINENTAL
CONGRESS enacted the first
American Articles of War, closely modeled
on the British Articles of War, which
had their roots in sixteenth-century
Europe. Under the articles, military justice
had a simple two-sided goal: to promote
good behavior and punish bad
behavior. It specified civilian offenses
such as murder and LARCENY, and military
offenses such as disobedience, disrespect
to officers, and desertion. To try
defendants for violations, it established a
simple tribunal made up of officers
under the control of their commander.
Accused parties had few if any of the DUE
PROCESS and appeal rights enjoyed by
defendants in civilian courts. No standard
rules for punishment existed; as
with all matters in a court-martial, punishment
was decided completely at the
discretion of the commander.
Free from the constraints of civilian
courts, early courts-martial produced
stark results. General GEORGE WASHINGTON,
like other commanders, understood
the court-martial’s potential for
keeping order in the ranks. During the
Revolutionary War, he ordered his troops
to watch the execution of fellow soldiers
who had been convicted of desertion.
Discipline—often severe—remained the
hallmark of the court-martial for the
next century. Few citizens or
politicians objected because
military culture was highly
esteemed. Soldiers who
brought shame on the service
were thought to deserve whatever
they got.
Despite earnest efforts,
few early critics of the court-martial
achieved much. By the mid-1800s, scholarly
calls for reform began with the work
of John O’Brien, an Army lieutenant
who wrote A Treatise on American Military
Laws, and the Practice of Courts
Martial: with Suggestions for Their
Improvements in 1846. O’Brien argued
for lessening the influence of commanders,
enacting more uniform rules, and
clearly establishing specific punishments.
But neither lawmakers nor the
courts were very impressed. Congress
had always accepted the distinction
between civilian and military justice, and
in a number of decisions, the U.S.
Supreme Court consistently upheld the
constitutionality of the court-martial
system.
The onset of WORLD WAR I brought
changes in the form of new Articles of
War (Act of August 29, 1916, ch. 418,
§§ 3–4, 39 Stat. 619, 650). Defense counsel
was guaranteed “if such counsel be
reasonably available,” but there was no
provision for appealing convictions. The
author of the revision, Judge Advocate
General Enoch H. Crowder, had scoffed
at the latter idea in testimony before the
U.S. Senate:
In a military code there can be,
of course, no provision for
courts of appeal. Military discipline
and the purposes which it
is expected to [serve] will not
permit of the vexatious
delays. . . . However, we safeguard
the rights of an accused,
and I think we effectively safeguard
them, by requiring every
case to be appealed in [the] sense
[that commanding generals
must approve every sentence,
and sentences of death or dismissal
require additional confirmation
by the president] (S. Rep.
No. 130, 64th Cong., 1st Sess.
34–35).
As a startling example soon showed,
these protections had little if any value. In
November 1917, a court-martial tried
sixty-three members of the all-black
Twenty-fourth Infantry Division of the
U.S. Army who were charged with a variety of offenses, including mutiny and
murder, stemming from a race riot in
Houston in which over a dozen people
had died. The court-martial convicted
fifty-eight men. Thirteen were sentenced
to death and hanged the following morning.
Despite General Crowder’s assurances,
neither the president nor even the
military authorities in Washington, D.C.,
had been informed. According to regulations,
the authority of a department
commander was sufficient in time of war
to confirm death sentences and the commander’s
order needed no further confirmation
because he was the convening
authority who had started the courtmartial.
The Houston hangings prompted an
immediate tightening of the rules for
death sentences, but the experience of
drafted men in World War I and WORLD
WAR II brought about greater change.
Called up to fight in the millions—and
also court-martialed in the millions—
civilians disliked their taste of military
justice. As a result of public outcry, Senate
hearings in 1917 led to a 1920 revision
of the Articles of War. This revision provided
for preliminary investigations,
defense counsel, the presence of a legally
trained member at every court-martial,
and higher review of all sentences of
death, dismissal, or dishonorable discharge.
The right to defense counsel for
soldiers was ahead of its time; civilians
would not have this right universally recognized
by the U.S. Supreme Court for
several more decades. The new Articles of
War also provided for automatic appellate
review of convictions.
In practice, not all the provisions of
the new articles were followed. Resources
for carrying them out were limited, and
commanders could not always be
counted on to depart from tradition. The
aftermath of World War II, in which
some 2 million soldiers faced court-martial,
brought even greater calls for
reform.
Major reform began in 1950. Congress
passed the UNIFORM CODE OF
MILITARY JUSTICE (10 U.S.C.A. §§
801–940), a sweeping reform of the military
justice system applying to all
branches of the service. This code created
the Court of Military Appeals, a threejudge
civilian body designed to review
certain convictions. The code also
extended greater protections to defendants:
lawyers had to be assigned to
defend them, and they now enjoyed significant
due process rights. On the other
hand, the military retained all other
authority over the administration of
military justice. The code kept the traditional
hierarchy of three courts convened
by commanders at increasingly higher
command levels with escalating punishments—
summary, special, and general
courts-martial. It established “law officers”
who functioned like judges, but it
retained much of the traditional model
of command control, which gave to
commanders the power to appoint the
investigating officer, counsel, and court
members (with the enlisted accused having
the right to request that one-third be
enlisted members). And it extended
court-martial jurisdiction over both
service members and certain classes of
civilians.
Further reform came through the
courts and Congress. In 1955, the U.S.
Supreme Court held that discharged
service members could not be courtmartialed
for crimes committed while
they were on active duty (United States ex
rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct.
1, 100 L. Ed. 8). In 1969 the Court held
that a case could be tried at court-martial
only if the offense was connected to the
defendant’s military service in O’Callahan
v. Parker, 395 U.S. 258, 89 S. Ct. 1683,
23 L. Ed. 2d 291. In 1970, the Court of
Military Appeals held that civilian
employees of the military overseas could
not be subjected to court-martial (United
States v. Averette, 19 U.S.C.M.A 363).
Congress brought reform with the
Military Justice Act of 1968 (Pub. L. 90-
632, Oct. 24, 1968, 82 Stat. 1335), which
revamped the Uniform Code of Military
Justice. It accomplished several key
changes: (1) court-martial procedures
were made to resemble more closely
those of U.S. district courts; (2) the law
officer was changed to a military judge,
with functions and powers like those of a
federal district judge; (3) the military
judge was protected from influence by
military authorities; (4) new intermediate
appellate courts of military review
were created in each service; and
(5) defendants were given the choice of
trial by judge or by jury. Additional
reform came in the Military Justice Act of
1983 (Pub. L. 98-209, Dec. 6, 1983, 97
Stat. 1393), which specifically provided
for review of Court of Military Appeals
decisions by the U.S. Supreme Court. By
1987, military justice had improved to
the point that the U.S. Supreme Court
overturned O’Callahan and returned to
the military greater authority to conduct
courts-martial (Solorio v. United States,
483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d
364).
Today the court-martial functions
smoothly as a system governed by law. In
every significant way, the modern courtmartial is at least the equivalent of a federal criminal trial.
