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Understanding the Court Martial Process
It is never easy being faced with a court martial, even with the most experienced military criminal lawyer San Diego law offices have at your side. Court martial comes in different types, the appeals at a court martial are tricky, and the punishments a court martial can impose can be severe. To help you face this chapter of your life, here’s an in-depth look into the court martial process.
You are presented with your right to a legal counsel
The court martial process doesn’t not begin the moment you enter the courtroom, and stand in front of the judge. It actually begins long before. We have divided our overview of the process into two distinct categories – before the actual trial, and during.
The first pre-trial aspect of a court martial process consists of the defendant exercising his or her right to a legal counsel. By default, and depending on the severity of the alleged crime committed, you are appointed, or detailed, as they say in the military, a Judge Advocate, i.e. a member of the JAG corps.
The good thing is that you can, if you know of a good and experienced JAG attorney, request to be defended by that person. You do not necessarily have to remain out of the loop and settle for whichever counsel the military appoints.
Another way to approach this matter, and, most of the time, the correct way, is to break the confines of the military justice system and hire a civilian lawyer who has specialized in military law. Your civilian lawyer of choice can work alone, or alongside a JAG lawyer to further strengthen your case.
Determining the court martial level, reducing, or dismissing the charges
After you’ve made your choice of legal counsel for your case, you can move on to the next step of the pre-trial court martial process. There are several possibilities – if your preferred charges stand, the military will make the choice of one of three levels of court martial for you to stand before. The three types of court martial are summary, special, and general, and their choice depends on the alleged crime.
If the case is not as strong as the military thought, one of two options may occur – either the charges are going to be reduced, or the charges are going to be dismissed altogether. If the charges are reduced, the court martial process is greatly shortened, with the case being resolved under one of the punishments of Article 15. In case of full dismissal, the case stops before it even begins.
Article 32 hearing
Under Article 32 of the Uniform Code of Military Justice, you have the right to a probable cause proceeding before the court martial trial begins. You can choose to waive this right, but it is a bad idea to do so, as this is an opportunity for you to present evidence in favor of your case.
The task of the prosecutor during Article 32 hearing is to present evidence that support the court martial case, and to try and establish probable cause of you having committed the offense. However, the prosecutor also has to submit any existing evidence that favors your side of the case. And this is the main reason you should never skip this portion of the pre-trial court martial process.
We also advise you to participate actively in this hearing, as it will greatly improve your chances of coming out on top of your court martial case. The best course of action is to hire a civilian military attorney that will present evidence in your favor together with a JAG corps representative. Your team of lawyers will be better equipped to challenge evidence, cross-examine potential witnesses, and find witnesses of your own.
Similar to civilian courts, pre-trial proceedings are also a vital part of the court martial process, and are also the final step before you actually step into the military courtroom. This is the stage of the process where both parties present witnesses and evidence to the court martial. Also, during pre-trial proceedings, the government, represented by the court martial, has to pay the costs of bringing witnesses, especially expert witnesses, to the trial. An important step, since expert witnesses are usually quite expensive.
Selecting the jury
Now, we move on the to section of the court martial process that concerns with the in-courtroom portion of it. The first matter on the agenda is selecting the jury that is going to preside over the court martial proceedings. The person who chooses the members is your commander. Commanders are supposed to interview the potential members of the jury in person before reaching a decision, but, in practice, it is the staff judge advocate who select the members of the court in their name.
The selected members have to still be allowed to become part of the jury. This is where both the prosecutor and your defense counsel ask questions in order to determine their viability for your case. This questioning occurs so as to determine whether or not the potential jurors can be objective and fair during the trial. And, all jurors are active military personnel, with your rank or higher.
After your case has been presented, after all the evidence and the witnesses, both in your favor and against are depleted, it is time for the deliberation of the jury. This is the part of the court martial process that effectively determines if you are found guilty or not.
The juror holding the highest rank is the foreman, or the president of the jury, but all the members have equal say during sentence deliberation. A majority of two-thirds is necessary in order for the court martial to pass a “guilty” sentence. However, should the jury not reach a unanimous decision, a hung jury usually ensues, leading to a second trial. The two-thirds majority doesn’t stand only in cases where a death sentence is in effect, where a unanimous decision is needed to pass a sentence.
Now that you know what the court martial process is like, it’s time to find adequate legal counsel
Regular trials, even those for minor offenses, are stressful enough. Now, imagine being faced with a military court, and all its specificities. Yes, it is daunting, and nerve-racking, and you need all the help you can get. Monder Criminal Lawyer Group has been founded with just those thoughts in mind – provide help to those who need it. Vik Monder is an incredible criminal lawyer, and he has surrounded himself with a team of the best civilian attorneys who specialize in military law. Your court martial case will be made a lot stronger with our help, so reach out today!