| Court martial trials are procedurally similar to civilian | | | | same as in any civilian criminal court. The prosecution |
| criminal trials. An accused and his attorney must be | | | | must prove that the accused is guilty of all elements |
| familiar with the differences between military and | | | | of the offense beyond a reasonable doubt.11 This is |
| civilian procedure. There are numerous pitfalls in the | | | | different from most civilian systems where the jury |
| military system that could trap an inexperienced | | | | must find the accused unanimously guilty. If the |
| practitioner. Military trials involve a prosecutor (trial | | | | civilian Urey does not agree on the verdict, then the |
| counsel), defense attorney,1 military judge,2 bailiff, | | | | result is a hung jury. Military juries are generally highly |
| court reporter,3 and if elected by the defendant, a | | | | trained, disciplined, and educated. They are know to |
| panel of military members (a jury).4 | | | | follow the judges instructions, the law, and make |
| A military panel is comprised of officers and enlisted | | | | their decision on the facts presented at trial. |
| personnel from the same command or from the | | | | Unfortunately, television and movies portray military |
| same community as the accused. All members of the | | | | juries as overzealous Government hacks that leave |
| panel must outrank the accused. The military panel is | | | | the defendant no chance of a fair trial. This portrayal |
| selected by the convening authority based on various | | | | is far from the truth in most situations. |
| factors such as experience, rank, and age.5 The | | | | If the accused is found guilty of an offense, the |
| accused is entitled to an impartial court martial panel. | | | | sentencing proceedings begin immediately. During the |
| While the prosecution and defense may voir dire the | | | | sentencing proceedings, the prosecution presents |
| panel, questioning is often limited by the military | | | | evidence in aggravation, victim impact, and effect on |
| judge. Both sides may challenge panel members for | | | | the unit's discipline and morale. During sentencing |
| cause. However, each side may preemptively strike | | | | proceedings in the military, the defense is permitted |
| only one panel member.6 Court martial proceedings | | | | to present extenuating and mitigating evidence in an |
| are open to the public and the media with a few | | | | attempt to gain a lower sentence. Both sides are |
| exceptions. For example, the military judge may close | | | | permitted to offer witness testimony and |
| the proceedings when classified information will be | | | | documentary evidence. It is common for military |
| disclosed.7 | | | | sentencing case to last several hours or longer. Both |
| The accused may choose to have the judge, rather | | | | the prosecution and defense are permitted to give |
| than the panel, decide his or her guilt or innocence. | | | | sentencing arguments to the court members or |
| However, if the accused elects to be tried by a | | | | military judge.12 When determining what sentence to |
| panel, then the panel also will decide the sentence to | | | | impose, two-thirds of a panel must agree on the |
| be imposed. Likewise, if the accused elects to be | | | | sentence, unless the sentence is for more than 10 |
| tried by a judge alone, then the judge will determine | | | | years or life, in which case three-fourths of the panel |
| the sentence.8 Also unique to military trials, when the | | | | must agree. In death penalty cases, the panel must |
| prosecution and defense have finished questioning | | | | unanimously agree on death.13 |
| any witness, the panel may ask questions of the | | | | An attorney seeking to practice in military courts |
| witness.9 It is common for military juries to ask | | | | should become familiar with the Uniform Code of |
| numerous questions of witnesses in an attempt to | | | | Military Justice (UCMJ), the Military Rules of Evidence |
| get to the truth. | | | | (MRE), and the local Rules of Procedure for the |
| Under the UCMJ, a service member facing court | | | | particular court. One a lawyer has mastered these |
| martial has three options when electing counsel. First, | | | | basic rules and procedures, then they can effectively |
| he or she may select to be represented by a military | | | | practice in any military court worldwide. Regardless of |
| defense counsel at no cost. Second, he or she may | | | | the court, whether in Iraq or Washington D.C., the |
| request another free military attorney by name. If | | | | same laws govern service members facing court |
| that attorney is available, then he or she will be | | | | martial. |
| appointed to represent the accused. Third, the | | | | 1. Article 27, U.C.M.J. |
| accused may hire a civilian defense counsel. If the | | | | 2. Article 26, U.C.M.J. |
| accused elects to hire a civilian defense lawyer, then | | | | 3. Article 28, U.C.M.J. |
| the accused is responsible for paying the civilian | | | | 4. Articles 26-28, U.C.M.J. |
| attorney's fees and travel expenses. Nevertheless, | | | | 5. Article 25, U.C.M.J. |
| the accused may request to keep his or her military | | | | 6. R.C.M 912. |
| attorney on the case to assist with the defense as | | | | 7. R.C.M. 806, M.R.E. 505. |
| well.10 | | | | 8. R.C.M. 903. |
| In the military a hung jury does not exist. In order to | | | | 9. R.C.M. 913(c). |
| find a defendant guilty, two-thirds of the panel must | | | | 10. Article 38(b)(2), U.C.M.J., R.C.M 506(a). |
| vote for a finding of guilty. The only exception is | | | | 11. R.C.M 921. |
| death penalty cases, which require an unanimous | | | | 12. Article 18, U.C.M.J. |
| verdict. At a court martial, the burden of proof is the | | | | 13. R.C.M. 1006; R.C.M. 1004(b)(7). |