So what does the military do about crime?
What does it do about these offenders and how does it deal with them? So there are actually several parallel systems inside the military to deal with misconduct. Most well known is the court martial or court’s martial for plural. And this is a federal court system. It’s what we call an Article 1 court. It is not part of the Article 3 of the Constitution court system envisioned by the Constitution. It is created by Statute10 USC, Title 10 United States Code. It is also referred to as the articles of the Uniform Code of Military Justice. So 10 USC 8 0 1 is actually article 1 of the UCMJ and all the way through until I believe Article 140 something, which would be 10 USC 9-40. These federal statutes created by Congress create a complete military justice system, and it is accompanied by other federal laws and regulations of statutes that all make it run
One of those most fairly is the manual for courts martial. Those are procedural rules generated by the president and how courts and trials run. There’s also military rules of evidence that match or mirror or very similar to the federal rules of evidence. So you have a complete criminal court system under the court martial process. You have the same basic due process rights you would expect in a federal criminal trial or in a state felony criminal trial to include trial by jury. You know, rules of evidence. A standard burden of proof rests on the government proof beyond reasonable doubt required to convict. But you do have some things that are unusual in the military justice system. So for those of you who pay attention to Supreme Court law, you’ll know that as of fairly recently in the last few years, it is no longer constitutional to have someone convicted of a crime by a non unanimous verdict.
For many years, Oregon and Louisiana were sort of outliers in that they allowed for a majority vote system to get a conviction at a trial. Then the Supreme Court in a case, Oregon had actually stopped doing it on its own, but Louisiana had a case before the Supreme Court, which decided that it is not constitutional to have non unanimous verdicts. So in other words, to be convicted, all of the jury members, all jurors had to vote and agree, that someone was guilty. The military justice system today continues to have a non unanimous verdict system, and in fact, in 2019, it updated its system to make many changes. But one of the changes it did not make was the non unanimous verdict system. So it is a super majority vote. In other words if someone is tried of a felony equivalent case, that’s what we call a general court martial. A general court martial requires six jurors to vote guilty, and if two vote not guilty, you’re still guilty. And some people say, man, that seems like a really bad system, but here’s the reality. It’s actually a pretty good system for people who are on trial because if I’m a defense attorney, which is what I do today, I only have to convince three members of the jury to vote not guilty to win a charge. And what that system does, more importantly is a non unanimous verdict system prevents the possibility of a hung jury, right? And it’s an efficiency thing. Make sure that with an unanimous jury verdict, you hear about juries being out for weeks where they deliberate back and forth, and that’s because they have to come to an agreement where they all say the same thing. And that can take a lot of time if people are arguing over it and debating it.
The thinking of that system is that they’ll just work it out and they’ll eventually all agree.
The military justice system doesn’t have time for that. So what our system is, most of our juries deliberate anywhere from one to maybe 10 hours at most. And what they do is they go through all the evidence, they discuss it, and then they simply vote in a secret ballot. And if the vote comes with three quarters or more saying guilty, then they’re guilty. But if it’s anything less than three quarters saying guilty, then they are acquitted, not guilty.
Sean Mangan is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.
Contact the Law Office of Jocelyn C. Stewart at 253-212-958
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