The following paper is dedicated to the analysis of court martial proceedings in the United States of America. The paper is aimed not only at discussing the proceedings themselves in the light of constitutional rights of the accused, but comparing court-martial process with the one, existing in civilian courts. Starting point of the work deals with discussing types and competences of courts-martial, as well as highlighting general issues related to their functioning. Thereafter different stages of the process are described with an emphasis on their differences from the ones of the civilian courts’ process. Selected procedural safeguards (e.g., presumption of innocence, the right to trial by impartial jury and the right to appeal to independent reviewing authority) are considered. The findings of the research show that courts-martial have unique competences, and the peculiarities of the procedures are determined by the fact that they operate in a specific sphere. However, similarities still exist between court-martial and civilian courts’ procedures.
General information about the courts-martial
Courts-martial constitute the important part of the U.S. military justice system. Military justice shares the objectives of criminal law system. It main objectives are discovering the truth, acquitting the innocent without necessary delays or expenses, punishing the guilty, accordingly to the crimes they committed, as well as providing for public order by preventing further crimes form being committed. Apart from these aims, military justice system serves to improve discipline throughout the Armed Forces of the United States; therefore, it serves as a prerequisite for the effective functioning of national defense system.
The main legal documents that govern the activities of military justice system are the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial that consists of the Rules for Courts-Martial and the Military Rules of Evidence. The fact that the Members of the U.S. Armed Forces worldwide are subjected to the rules, proceedings, orders and consequences, different from the ones of civilians, the Congress enacted unique legal framework to govern these relations.
Military courts are not considered courts are not considered courts in the light of Article III of the Constitution of the U.S., but are established pursuant to Article I of the Constitution (United States v. Wuterich)
Under UCMJ there are three types of courts-martial. Summary courts-martial represent the lowest level of courts-martial available that is designed in order to resolve minor issues through simplified procedures. The punishments that can be imposed by summary courts-martial include confinement for 1 month or less; hard labour without confinement for 45 days month or less; restriction for two months or less or forfeiture of 2/3 pay per month for one month or less. In general terms the punishment, imposed by summary courts-martial is not considered a conviction and does not cause any losses of benefits that stem from the punishments, imposed by general or special courts-martial (Judge Advocate General 15-29). These courts consist of only one commissioned officer, and has jurisdiction over noncapital offences, committed by a limited number of military servicemen that are enlisted in UCMJ.
As opposed to a summary court-martial, special court-martial consists of no less than three members and a judge. The accused has the right to ask to be tried only by the military judge. The special court-martial is most often characterized as misdemeanor court and is capable of trying all servicemen, including officers and midshipmen. Special courts-martial are authorized to impose a wide range of punishments, apart from death; dishonorable charge; dismissal; confinement for more than one year; forfeiture, exceeding the two thirds of salary per month and hard labour without confinement for more than 1 year (Judge Advocate General 15-29).
General courts-martial consist of no more than five members and the military judge. As in a special court-martial, the accused has the right to be tried by military judge alone. This court is considered a felony court, and can try all servicemen for capital offences. The court has the authority to apply any punishment that is not prohibited by the UCMJ, including the death penalty, if special authorization is obtained.
The differences in severity of offences that are considered by different court-martials and different punishments, available for them call forth considerable differences in procedures at different courts-martial. While the procedure in a summary court-martial is simplified and the accused has limited rights with regard to the trial, the procedure in general court-martial is far more complicated. Let us consider the basics of the procedure in courts-martial.
Procedure in courts-martial
The first stage of the process is arrest or confinement of the accused persons. According to Article 46 Section 1 of Chapter V “Courts-martial procedure prior to trial” of the Manual for Courts-Martial, the officer, charged with either crime or serious offence under the article of war shall be placed in arrest by the commanding officer, or, in exceptional cases, an officer so charged may be placed in confinement by the same authority (Manual for Courts-Martial 25). A soldier that was charged with either a crime or serious offence under the articles of war shall be placed in confinement, while in case of minor offence he may be placed in arrest authority (Manual for Courts-Martial 25).
Major duties concerning ordering arrests and compelling the attendance of the accused are performed by so-called convening authority. This subject is absent in civilian courts. His/her appearance in military courts’ procedures is called forth by the fact that courts-martial are not permanent courts, and the convening authority may change, dependently on the requirements of a particular case. Placing under arrest is conducted in verbal or written order or communication. One of important consequences of an arrest lies in the fact that the officer in the arrest is incapable of exercising the command of any kind.
The next element of the process to be described is the preparation of charge that can be associated with the indictment in civilian procedure. Charges may be initiated by wide range of persons, and need to be authenticated by the signature of commissioned officer (Manual for Courts-Martial 32).Charges against one person may be consolidated, as well as joint charges against several persons may be initiated. The charges need to contain a statement of specification; specific articles, when used; the time and place of the committed offence; Christian name of the accused; the rank, written papers that may confirm the commission of the crime, etc. After charges are prepared, they are submitted. When being submitted the charged are accompanied by a brief statement of the substance of material testimony that is expected from each of the participating witnesses, as well as properly authenticated evidence of convictions, if any, of an offence or offences, committed by him in terms of his current enlistment. One of the key rights of the arrested is the right to the speedy trial. Prompt actions are required in case the person is confined or arrested, as the confinement cannot last longer than 8 days, or until such time as court-martial can be confined. General term for bringing the person to trial constitutes ten days after the arrest (Manual for Courts-Martial 41-42) .
As the court-martial is not a permanent court, the authority that appoints the court-martial designates the place for holding the court, hour of meeting, the members of the court and the judge advocate. The voting is being conducted by the members, starting from a junior in rank. One of most important persons in the courts-martial trial is judge advocate, who prosecutes the name of the USA and prepares the records of the court’s proceedings. Other members include assistant of the judge advocate, counsel, reporter and interpreter. In general and special courts-martial the accused has the right to be represented by the counsel of his choice, for his defense, in case the counsel is reasonably available.
Procedure during the trial is in detail presented at the chapter X of the Manual for Courts-Martial, where the rules concerning challenges, pleas and motions are contained. The peculiarity of procedure lies in the differences, stemming from either military or civilian status of the witnesses. Special procedures are elaborated on for securing the attendance of civilian witnesses.
The rules concerning evidence are less different from the ones in civilian courts. Both circumstantial and testimonial evidence is examined during the sitting of the court-martial. The rules concerning the interrogation of witnesses may differ, accordingly to either military or civilian status of the witness.
As in civilian courts, the judgment of the court consists of the findings and the sentence. All convictions that, regardless of the type of the court-martial, may be determined by the majority of members, apart from the fact that no person can be convicted of an offence, for which the death penalty is mandatory by law, unless two thirds of the members of the said court-martial vote for it (Manual for Courts-Martial 141). One of most considerable peculiarities of the authority of a court-martial lies in the fact that a court-martial is authorized to find the accused guilty of a part of the specification only in case it is of the opinion that any portion of allegations in the specification is not proved (Manual for Courts-Martial 142). The punishments that can be imposed by the court-martial are different from those that may be imposed by civilian courts due to separateness of the system of military criminal law.
There are procedures that ensure post-trial review in every case; however, the extent of those appellate rights may depend upon the punishment that have been imposed by court and further approved by the convening authority. In some cases (e.g., if the punishment is for one year or more), the case will undergo the automatic review by the appropriate military Court of Criminal Appeals. Intermediate courts of appeals include Army Court of Criminal Appeals; Navy-Marine Corps Court of Criminal Appeals; Air Force Court of Criminal Appeals and Coast Guard Court of Criminal Appeals. Thereafter the review by the Court of Appeals for the Armed Forces is available.
Finally, under certain limited circumstances the access to the Supreme Court of the U.S. can be granted to service members. The access to the Supreme Court of the U.S. for military personnel is one of most debatable legislation-related issues in the USA. Since 2005 numerous bills regarding equal justice for the U.S. military personnel were introduced, although no of them has ever become a law.
Concluding this subsection, one can claim that there are significant differences in procedures between the courts-martial and civilian courts. These differences are determined by limited number of subjects, who may be tried by courts-martial; ad hoc nature of courts-martial, as well as specific nature of offences and punishments under study. Despite considerable number of peculiarities that may be traced, general design of the procedure is close to the one of civilian courts as both types of courts operate in terms of the common legal system.
The differences in selected procedural safeguards
Some constitutional safeguards are shared by civilian courts and courts-martial (e.g., protection against double jeopardy, the rules concerning the burden and standards of proof, the right to remain silent). At the same time, the others may not apply to the procedure in courts-martial. For instance, some limitations apply to the freedom of unreasonable searches and seizures, provided for by the Amendment IV to the U.S. Constitution. While, in cases of civilians, the rules concerning evidence, resulting from overseas searches are almost similar to the ones, applicable to the U.S.-based searches, in case of general courts-martial a search, conducted by foreign officials is unlawful only if the accused is subject to “gross and brutal treatment” (Mason 10).
In a case of the right to speed and public trial, provided for by Amendment VI to the U.S. Constitution, in general courts-martial the public may be excluded from potions of information for the purpose of protecting classified information (U.S. Const Amend VI). It is also worth mentioning that the Constitution of the U.S. specifically exempts servicemen, who were accused of a crime, from the Fifth Amendment right to a grand jury indictment (U.S. Const Amend V). Thereafter the Supreme Court of the U.S. has come to the conclusion that there is no right to a civil jury in courts-martial.
Furthermore, the military accused has no Six Amendment right to a trial by petit jury. However, the Congress provides for a trial by members of the court-martial. The absence of the right to be tried by a petit jury precludes criminal trial not by civilian court, but by the court-martial.
Brief analysis of the application of selected constitutional safeguards to the procedure in courts-martial shows that both exemptions and limitations of constitutional rights apply within courts-martial procedure.
The analyses of the general information concerning courts-martial, pre-trial and trial procedures and the application of constitutional safeguards to these relations show that there are considerable differences between the organization and procedures in civilian courts and courts-martial. In this regard, special attention needs to be paid to ensuring constitutional rights of the accused in different types of courts-martial; broadening the scope of the rights of the accused in summary courts-martial and providing for the equal justice of the military servicemen, granting them the right to have their cases reviewed by the Supreme Court of the USA.
Judge Advocate General. Guidance on sentencing in the court martial. Washington, D.C.: JAG, 2013.Web.
Mason, R.G. Military justice: courts-martial, an overview. Washington, D.C.: Congressional research Service, 2013. Web.
The U.S. Congress. Manual for Courts-Martial (MCM), 2012. Web.
United States v. Wuterich. 08-6006/MC. Court of Appeals of the Armed Forces.2008. LexisNexis Academic. Web. 18 Feb.2014
U.S.Const. Amend V-VI