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Court-Martial: The Process

The biggest question we receive about courts-martial is “How does the process work?”

Frankly, it is not all that different from civilian criminal trials. However, everything has a different name. Much of the job of a court-martial lawyer is to manage the process and obtain any and all advantages for you.

Investigation:

At this point, information is being gathered by investigators and the command. Based on this information, a decision on trial will be made by the command with the advice of their JAG lawyers. Your most powerful right is to remain silent and not talk to anyone but your lawyer about what you know.

Preferral of Charges:

This is when the accused is presented charges on a DD Form 458. At this point, the process is official and certain rights are triggered.

Article 32 Investigation (General Courts-Martial):

This serves a similar purpose to civilian grand juries and preliminary hearings. It is to determine whether reasonable grounds exist to move the case forward to trial. Despite what you might hear, this is an extremely important phase for both prosecution and defense.

Referral of Charges:

This is when the convening authority (usually a General/Admiral) decides to forward the trial to a military judge for trial. This is, arguably, the most significant step in the process and triggers motions practice by the court-martial lawyers. A military judge will be assigned to the case within days of referral.

Arraignment:

This is the first appearance in a military courtroom. Here, the judge informs the accused of rights and choices. It is generally very simple and brief.

Motions:

This is where attorneys for both sides attempt to “prep the battlefield” with pretrial orders/decisions from the judge. Most often, each side attempts to limit the evidence that can be presented by the opposing side while preserving any tactical advantages. For the defense, this is the time to request discovery (obtain information relevant to the charges and witnesses).

Trial:

This is where a jury (panel) is chosen, evidence is presented, arguments are made, existence of guilt is determined, sentencing evidence is presented, and a sentence is determined. It can last a little as one day or several weeks.

Post-Trial:

During this stage, the record of trial is reviewed for errors, motions may be made for certain relief, and requests for clemency are submitted.