The Military Court Martial Process: A Quick Overview

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Ever wonder how a court martial works?

Stick around I’ll break it down for you real quick.

Let’s dive right in step one of the process. The investigation, now oftentimes you’re not even going to know you’re in this step. CID NCIS or OSI, one law enforcement agency or another is going to be investigating you with or without your knowledge. And they’re going to be interviewing witnesses. They’re going to be reviewing digital and physical evidence against you. Typically this is always evidence against you rarely is it for you.

Step two preferral of charges this process starts when the commander formally brings you in and accuses you of violating something under the UCMJ. They are literally reading from the chart sheet verbatim the charges and specifications that the Jag wrote. They didn’t write it. This is called a preferral, not a referral, a preferral. And it’s just the beginning of the court martial process.

Step three the article 32 hearing. This is a preliminary hearing to determine whether or not there’s enough evidence to move forward to court martial. It’s also known as the probable cause. The PC hearing during the hearing, the preliminary hearing officer, the foe is going to hear from witnesses, review the evidence to decide whether or not there’s enough evidence against you to move forward to court martial. Step four referral of charges after the foe makes the recommendations and writes the report to the convening authority.

Now they could refer charges against you to a general court martial.

By the way, if they’re trying just to take it to a special court martial they don’t need to have an article 32 here. They can just refer charges if they determine that there’s enough evidence in the case to move forward to court martial, which is a military trial. It will be referred to court-martial and now the accused gets to choose whether or not they’re going to have a jury or a military panel or go judge alone.

If you’re enlisted you can choose whether or not you want officers to be on the panel or whether or not you want it in a listed panel. And that doesn’t mean everyone’s enlisted, it means there has to be a certain amount of enlisted members on that panel. If you’re an officer you don’t get the option to have an enlisted panel.

Step five the big show, the trial during the court martial. The trial both the prosecution and the defense are going to present their cases. They’re going to present their evidence, they’re going to call their witnesses, and the other side is going to cross-examine those witnesses. They’re going to submit evidence and the members or the judge depending on what you’ve selected is going to decide whether you are guilty or not guilty.

Let me tell you the sweetest word you can hear in the English language together are not guilty. Unfortunately, if you are unlucky enough to have been found guilty of anything on the charge sheet you go right into step six the sentencing phase.

Now this is one of the biggest differences between civilian trials and military trials. In the civilian world after you’re found guilty at trial you typically get days, weeks or months to prepare for a sentencing case to go in front of the sentencing authority and present evidence on why you deserve the lowest possible sentence.

Meanwhile the government’s going to be doing the opposite talking about why you deserve the harshest sentence. But in the military you go right away and I mean right away. Either that day, that night, or maybe the next morning. That’s why it’s crucial to have an attorney be prepared in the UCMJ who understands not only do they have to bring the evidence to have a little knife fight in the courtroom and fight for you but also to be prepared with a sentencing case just in case something goes wrong. And to ensure you get the lowest possible sentence.

That’s a quick overview of the court martial process. In the meantime I’ll be defending those that defend America.


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