Courts-Martial Lawyer

• Be informed of the charges under investigation
• Be informed of the identity of the accuser
• With very limited exceptions, be present throughout the taking of evidence
• Be represented by counsel
• Be informed of the witnesses and other evidence known to the I
• Be informed of the purpose of the investigation
• Be informed of the right against self-incrimination
• Cross examine witnesses who testify
• Have witnesses produced if their appearance meets the applicable requirements
• Have evidence within military control produced if certain requirements are met
• Present anything in defense, extenuation, and mitigation
• Make a statement in any form

The trial begins with a session out of the presence of the court members. At the beginning of this session, the military judge asks the accused about his or her choices regarding various rights. The military judge will ask the accused by whom he or she wants to be represented and whether he or she wants to be tried by court members or by military judge sitting alone.

Also, during this session, the lawyers for each side may ask the judge to rule on certain points of law. Typical motions at this phase may involve the suppression of evidence due to an improper search or seizure, suppression of statements made by the accused due to a rights violation and attempts to introduce or exclude evidence under the Military Rules of Evidence. After the military judge rules on any motions brought before the court, the accused enters his or her pleas in the case. If the accused pleads guilty, the military judge will question him or her to determine if the pleas are knowing and voluntary. If the judge determines the pleas are provident, or acceptable, the case proceeds to sentencing. If the accused pleads not guilty, and has elected trial by court members, the “findings” (guilty/not guilty) phase of the trial begins.

One of the first and most critical steps in the process of picking a final panel of members through a process called voir dire. An adept handling of the voir dire process can be critical in the outcome of your case. And it is only with experienced counsel that the proper questions can be asked in the right way to ferret out evidence to either keep or remove members. Once the member’s panel is in final form the next step in the trial is the opening statements by counsel for each side. These statements are the lawyers’ views of what the evidence will show.

The Government then begins their case. The prosecutors in the military are referred to as “Trial Counsel.” Trial Counsel present their evidence and witnesses and the Defense has an opportunity to question all witnesses called by the Government through a process called cross examination. At the conclusion of the Government’s case, the Defense may present a case, or may remain silent and present no evidence. If the Defense puts on a case, all witnesses called by the Defense are subject to cross examination by the Trial Counsel, to include the accused if he or she testifies.

​After both sides have an opportunity to present possible rebuttal evidence, the military judge will close the court and have a session with the lawyers and the accused to determine what instructions he will provide the members. The judge is obligated to instruct the members on the law applicable in the case; sometimes there are disagreements as to the appropriate instructions, and the judge will rule on these issues out of the presence of the court members. The members are then called back into the courtroom and the judge provides the substantive instructions to the members.

The lawyers then make closing arguments. Closing arguments are more than just the lawyers’ recitation of the facts; these arguments are the lawyers’ opportunity to convince the judge or members that their respective cases are the more believable. A well done closing argument made by seasoned counsel can give the members the confidence to vote in your favor once they retire to deliberate. After the arguments of the lawyers, the military judge provides the instructions on the applicable procedures for closed session deliberations, voting by the members, and announcing the findings.

In the military, unlike the civilian community, an accused can be convicted if two-thirds of the members vote for conviction on any given offense – a unanimous verdict is not required. If the accused is convicted of an offense before the court, the case proceeds immediately to the sentencing phase. If the accused is acquitted – or found “Not Guilty” – of all charged offenses, the trial is over and the accused returns to duty.

In the civilian community, there is often a period of time between a conviction and the sentencing phase of the trial. This respite allows for completion of such items as a sentencing report for the judge; it is also often undertaken before a judge without a jury and governed by state or federal sentencing guidelines. In the military, however, the sentencing phase of the trial follows immediately after the findings phase. The accused is sentenced by the same forum he or she selected for the findings phase; that is, if he or she elected trial by members, he or she is sentenced by members, if he or she elected trial by military judge alone, he or she is sentenced by military judge alone.

The sentence case procedure mirrors the findings case procedure in that the Trial Counsel goes first. The Trial Counsel presents a number of mandatory items from the accused’s military record, and any other evidence directly relating to or resulting from the offenses of which the accused has been convicted. The Trial Counsel’s evidence is known as “matters in aggravation.” The Defense goes next and presents matters in “extenuation and mitigation.” At the conclusion of the evidence, the judge again instructs the jury, the lawyers argue, and the jury deliberates. If the accused is sentenced to confinement, the confinement takes place immediately, with very limited exceptions. If the accused is sentenced to a reduction in rank or forfeitures, the effective dates of those portions of the sentence depend upon the service of the accused. If the accused is sentenced to a punitive discharge, the effective date is driven by the completion of post-trial processing and any appeals in the case.

In the military, with one limited exception, court members are only excused if it can be demonstrated that they cannot hear the case fairly and impartially. However, the lawyers do get a chance, as noted above, to question the court members in order to determine whether they are fair and impartial. Additionally, each side is permitted one challenge against a court member, which results in the excusal of the court member, without demonstrating partiality. This exercise, too, requires significant study of the background of the court members as set forth in their background data sheets supplied before trial, and application of experience to determine which court members are better suited to sit. For example, one may think it would be a good idea from a Defense perspective, to try and remove any women from a Court-Martial panel in a sexual assault case. This is not always the case; in fact, in some sexual assault cases, it is a good idea to try and keep women on the Court-Martial panel. Only years of experience puts the Defense in a position to make such calls.