The Court-Martial Process
Understanding what will happen next is the best way to deal with the pressure of a court-martial. The following is designed to assist you and your family with the way forward. The basic structure of the military process is similar to criminal trials you may have seen in civilian courts or depicted in the movies. Once allegations are made, the government begins to investigate the crime. The government’s investigators are usually either Military Police Investigators (MPI) or Criminal Investigation Division (CID) officers. These individuals interview the key witnesses, secure all available evidence, and create a report that details the nature of their investigation.
Based upon the investigation by MPI or CID, the government prosecutor (trial counsel) then discusses the case with your chain of command. The trial counsel with typically recommend to the command the possible charges that could be preferred against you. Having charges preferred against you is when your command decides to formally charge you with a crime.
Charges have been Preferred
Once charges are preferred against you, each level in the chain of command will make a recommendation as to what type of trial the case should be heard by. The command can recommend a Summary Court-Martial, a Bad Conduct Discharge Court-Martial, or a General Court-Martial. Each level of court-martial has different maximum punishments that it is authorized to impose.
If the charges against you are serious (rape, murder, aggravated assault, etc.) then they will most likely be heard by a General Court-Martial. If your case is recommended for a General Court-Martial, the Brigade Commander will direct that the case be investigated by an Article 32 Investigating Officer. The purpose of the Article 32 investigation is discussed further below.
Article 32 Hearing
Unless you waive this right, no charge may be referred to a general court-martial until a thorough and impartial investigation into the basis for the charge(s) has been made. This pretrial proceeding is known as an Article 32 investigation and essentially serves the equivalent function of a grand jury hearing in civilian jurisdictions. At the Article 32 investigation, you are able to call witnesses on your behalf and to cross examine the government’s witnesses. If the allegations against you are false, the Article 32 is a great way to prove this fact. Mr. Coombs has successfully knocked cases out at the Article 32 for his clients.
At the conclusion of the Article 32 hearing, the investigating officer will make a recommendation to the convening authority. This recommendation is not binding on the convening authority. It is simply for the purpose of giving advice to the convening authority. With that said, oftentimes the convening authority does follow the recommendation of the investigating officer.
If Mr. Coombs is not able to resolve your case at the Article 32, or come to some other alternative disposition with the government, then the case will go to a trial. At trial, you will have the ability to have your case heard by an impartial judge or jury. A court-martial has two basic phases: the “findings” phase and (if necessary) the “sentencing” phase. In the findings phase, the trial counsel presents witnesses and other evidence in an attempt to prove that you are guilty of the offenses charged. Mr. Coombs is then able to cross-examine the witnesses and make other challenges to the evidence in an effort to discredit the witness or show why they should not be believed.
Once the trial counsel has presented all of their evidence, you are given an opportunity to present evidence on your behalf. The evidence that you present is designed to prove that you are innocent or to raise reasonable doubt as to your guilt. The government is entitled to cross examine any witness that is called on your behalf. After your defense case is completed, the government has a limited right to submit rebuttal evidence to matters that were raised during the presentation of the defense’s case.
At the close of all the evidence and after receiving the instructions from the military judge, the jury meets privately to determine whether the government has proven your guilt beyond a reasonable doubt. Jurors, called panel members, are generally a mix of officers and enlisted members. They vote by secret ballot, and in most cases, conviction on any offense require a two-thirds majority, unlike civilian courts, which generally require a unanimous verdict for everything. If you are found not guilty of all the charges, then the case is over, and you are able to freely leave the courtroom.
If, however, you are found guilty of any offense, the case proceeds immediately to the issue of sentencing. This is different from most civilian courts, where sentencing is delayed several weeks pending the completion of a presentencing report. In military cases, there is no presentencing report. Rather the prosecution and defense are expected to be prepared for this possibility and be ready to present evidence about you and the offense. At the sentencing proceeding, our goal is to present the very best case for you in order to receive the most lenient sentence. Again, this is where an experienced defense counsel can really help by packaging a sentencing case that is persuasive to the military judge or panel.
Sentencing evidence includes the impact of the crime (both on a victim, and on a unit’s discipline and morale), your duty performance history, and extenuating or mitigating circumstances surrounding the offense. In addition to us calling witnesses, the government may also call witnesses. The government usually calls a witness from the unit to talk about impact on the mission. After the witnesses testify, you will be given an opportunity to testify on your own behalf. You can testify under oath or you may give an unsworn statement. If you testify under oath, the government and the military judge may ask you questions. If you testify by giving an unsworn statement, then the government and military judge may not ask you questions.
At the conclusion of the presentation of evidence, the government and the defense are each given an opportunity to argue for an appropriate sentence. Once they finish their arguments on sentencing, the military judge or panel will deliberate on the appropriate sentence. If you have a panel, they will vote by secret ballot, and in most cases, it will require a two-thirds majority to agree upon any sentence. If the sentence is greater than 10 years, then it will take three-fourths to agree.
After the trial is complete, the court-reporter will type a verbatim transcript of the record. A copy of the record will be served on you and your defense counsel. You will then be given an opportunity to present to the convening authority matters that you want him to consider in order to request clemency. The convening authority will consider the record, the sentence, the Staff Judge Advocate’s advice, and the matters that the defense presents to him before taking action on the case.
The convening authority has extensive discretion when taking action on a case. In taking action, the convening authority either approves the findings and sentence or may change either or both of them. The only limitation on the convening authority is that he may not increase the sentence. In general, the appellate process does not begin until the convening authority has taken action.