Swift & McDonald, P.S., represents members of all branches of the military who are facing court-martial offenses anywhere in the world. As a member of the military, you are subject to the legal process outlined in the Uniform Code of Military Justice (UCMJ). You have the right to retain your own attorney to advise and represent you throughout the process. Contact our office in Seattle, Washington, to speak with attorney Charles Swift.
What to Expect Throughout the Court-Martial Process
The Rules for Court-Martial (RCMs) and Military Rules of Evidence used in military courts are in some respects similar to those in civilian criminal courts. In other respects however they differ substantially from those in civilian courts. These rules and procedures apply equally in general and special courts-martial.
Pretrial Confinement
Pretrial confinement is not ordered in every case. However, your commanding officer may place you in pretrial confinement if there is a reasonable belief that you have committed an offense which is triable by court-martial and if pretrial confinement is warranted under the circumstances. If you are placed in pretrial confinement, you have the right to be informed of the nature of the offenses for which you are being held, the right to remain silent, the right to retain civilian counsel at no expense, and the right to request assignment of military counsel. After being placed in pretrial confinement, your commanding officer must prepare a written memorandum stating the reasons for your confinement within 72 hours. This memorandum is forwarded to a review officer who will hold a hearing to determine whether or not continued confinement is warranted. This hearing will be held within seven days of being placed in confinement. You have the right to representation at this hearing and may request a continuance in order to have civilian counsel present. At this hearing, the review officer will determine whether lesser forms of restraint would be sufficient to ensure the protection of the community and ensure your presence at trial. This hearing is critical because there is no bail in the military system. Thus, if the review officer finds that continued confinement is warranted, then you will likely remain in pretrial confinement until the trial is completed.
Article 32 Investigation and Hearing
If the charges against you are particularly serious, (potentially warranting punishment of imprisonment in the case of an officer, or more than one year in the case of an enlisted service member), then your command is likely to refer your charges for a preliminary investigation, pursuant to Article 32 of the Uniform Code of Military Justice. The Article 32 investigation begins when your commanding officer appoints an impartial investigating officer to determine whether there are reasonable grounds to believe:
- Whether there is sufficient evidence that an offense occurred and you committed the offense,
- Whether the charges against you are in proper form, and
- Whether a general court-martial is the appropriate level of disposition for your case.
After the Article 32 hearing, the investigating officer will recommend whether your case should proceed to a general court-martial, be dismissed, or moved to a lower court. These recommendations will be reviewed by an attorney in the Staff Judge Advocate's Office who will make additional recommendations. Both sets of recommendations are forwarded to the officer exercising general court-martial convening authority. This officer will ultimately decide how to proceed in the case. If he or she decides to refer the case to a general court-martial, then proceedings can commence within in five days of charges being forwarded.
Arraignment
Once your case has been referred to either a general or special court-martial, you will be arraigned before a military judge. The military arraignment is very similar to civilian arraignment. During arraignment, the court will inform you of the charges against you, your rights to counsel, your rights to make pre-trial objections, and your rights to have her case heard by either military judge or members. You will be asked for your plea. Unlike a civilian court, you will normally reserve your plea in order to preserve your rights to make pre-trial objections.
Pre-trial Hearings
The military judge uses pretrial hearings to settle pre-trial objections and procedural issues. During these hearings, the military judge may hear witnesses, take other evidence, and hear arguments. These hearings are held in a military courtroom where a verbatim record is kept for use in an appeal, if necessary.
Pre-Trial Agreements
Prior to trial, the prosecution may agree to resolve the charges against you by way of a plea agreement. While the specific terms of these agreements vary, the essential element of the agreement is that in exchange for your agreement to plead guilty to some or all of the charges, officer exercising court-martial authority over you agrees to limit your sentence to a fixed punishment. After a pre-trial agreement is entered, you will enter your plea of guilty before a military judge, who will determine if the facts to which you admit are sufficient to constitute a violation of the charged offenses. After hearing your plea, the military judge will then hear evidence in extenuation and mitigation as well as evidence in aggravation, and then award a sentence. Military pre-trial agreements, however, differ substantially from civilian pre-trial agreements in one important respect: Unlike a civilian case, the military judge is not informed of the sentence you have agreed on with the prosecution. Instead, the military judge gives what he or she believes is an appropriate sentence in your case. The lower of the two sentences is then the one that is used in your case.
Trial
If you choose not to resolve your case by agreement, then your case will be heard by either a military judge detailed to hear your case, or, if you select, by a court-martial composed of military members.
Court-Martial Panel
Unlike civilian courts, your court-martial panel will be selected by the officer exercising court-martial authority from officers under his or her command. If you are enlisted and desire to have enlisted members hear your case, then at least one third of the panel must be enlisted service members. All of the members will be senior to you in rank or grade. In order to assure that the members are not improperly biased in your case, you have the ability, through defense counsel, to question the members regarding any bias that they might have, and to request removal any member who is improperly biased. In addition to challenging members for cause, you defense counsel may strike one member for the panel without stating any reason to do so. After the court-martial panel is chosen, the findings phase of the trial will begin.
Finding Phase
Your trial will begin with opening statements, where both sides will present what they believe the evidence will show. After the opening statements, the government will begin to present their case against you through evidence and witnesses to prove you are guilty. During this time, your defense counsel can cross-examine witnesses and make other challenges to evidence. At the conclusion of the government's case, your defense counsel can either present a case, or remain silent and present no evidence. If you present a case, all evidence and witnesses are subject to cross-examination by the government. At the close of your case, the government will get the chance to do it all over again during rebuttal. The finding phase concludes with closing arguments and jury deliberation. In a military trial, the court-martial panel does not require a unanimous vote. Unlike civilian courts, military courts only require two-thirds of the panel to vote for conviction. If the panel finds you "Not Guilty," the trial is over and you return to duty. If the panel finds you "Guilty," the trial will proceed immediately to the sentencing phase.
Sentencing Phase
During the sentencing phase, both sides will once again present evidence, including the impact of the crime, your duty performance history, and extenuating or mitigating circumstances. After the evidence is presented, both sides will present arguments about appropriate sentencing for the offenses. After both sides present their arguments, the court-member panel will deliberate on the appropriate penalty. Finally, if you are sentenced to confinement, the confinement will take place immediately. If you are sentenced to a reduction in rank or forfeiture, the effective date will depend on your branch of service. If you are sentenced to punitive damages, the effective date will occur after post-trial processing and any appeals in the case.
Free Initial Consultation · Representing U.S. Military Personnel Around the World
From offices in Seattle, the firm represents clients in civilian criminal matters and military family law matters throughout Washington State. Mr. Swift represents clients in military law matters at U.S. bases around the world. Contact the law firm of Swift & McDonald to arrange a free initial consultation with an experienced attorney today.Call toll free 800-391-7308.
