What are the military courts?
The Uniform Code of Military Justice (UCMJ) provides for three different types of courts-martial: summary, special, and general. These forms of courts-martial differ in their make-up and the punishments which may be imposed.
The Military Rules of Evidence apply to all classifications of courts-martial. Moreover, an accused must be proven guilty beyond a reasonable doubt.
Can I hire civilian counsel?
The short answer is “yes,” but be sure the civilian counsel has some experience handling military cases. While courts-martial are similar to federal district court cases, there are also big differences that can throw off a private counsel that is not expecting them.
How do I hire a civilian counsel?
In Special and General Courts-Martial, a military lawyer licensed in his home state will be assigned to represent you. Trial Defense Service lawyers may be less experienced than private counsel, but they are familiar with your military judge and the prosecutor. Often when the accused hires a civilian counsel, they decide to keep the TDS defense lawyer on board as second chair to assist the civilian counsel and the accused before, during and after trial.
Before hiring a civilian counsel for a military case, it is important to find out how many cases the lawyer has handled in the military. Although the rules of evidence and procedure are similar, an otherwise experienced civilian counsel who has little or no military experience may seem a bit awkward and out of place in the courts martial, and that could detract from your defense. If you cannot afford civilian counsel, rest assured that the appointed TDS lawyer will represent you to the best of his or her ability
What about keeping my military lawyer and hiring a civilian counsel. Is this possible?
Yes! In civilian courts, once a defendant hires a private lawyer, the public defender must withdraw from the case. In military courts-martial, the accused has the right to have both a civilian lawyer paid out of your pocket AND the designated military lawyer at no personal expense. A lot depends on the personality and style of the civilian lawyer, but even with years of prior military experience I have found as lead counsel that keeping the military lawyer on the case is a big asset. The military lawyer may not be as experienced, but s/he has inside information about the judge, the military prosecutor, the Staff Judge Advocate, how similar cases were handled in the recent past, recent case law, tracking down military witnesses, processing chapter discharges in lieu of court-martial, and other information. It is the best of both worlds – two offices working together to give you the best possible defense team!
What is a summary court-martial?
A summary court-martial consists of one commissioned officer. If the officer finds you guilty, the punishment which may be imposed depends on your grade. For those above E-4, a summary court-martial may impose any punishment not forbidden by the law except death, dismissal , dishonorable or bad conduct discharge, confinement for more than 1 month, hard labor without confinement for more than 45 days, restriction to specified limits for more than 2 months, or forfeiture of more than two-thirds of 1 month’s pay.
For E-1 to E-4 pay grades, the court-martial may also impose confinement for not more than one month and may reduce the accused to the lowest pay grade, E-1.
A trial defense service lawyer will not be appointed to represent you, although you can hire civilian counsel at your own expense. You have the right to refuse trial by summary court-martial, but the battalion commander may refer the case to Special Court-Martial instead.
What is a special court-martial?
A special court-martial consists of not less than three members and a military judge, or an accused may be tried by military judge alone upon request of the accused. A special court-martial is often characterized as a misdemeanor court, and may try all persons subject to the UCMJ, including officers and midshipmen. A special court-martial may impose any punishment authorized under R.C.M.1003 except death, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year. .
What is a general court-martial?
A general court-martial consists of not less than five members and a military judge, or an accused may be tried by military judge alone upon request of the accused. A general court-martial is often characterized as a felony court, and may try all persons subject to the UCMJ, including officers and midshipmen. A general court-martial may adjudge any punishment not prohibited by the UCMJ, including death when specifically authorized.