Military personnel are legally-bound and expected to abide by their respective military rules, including its military justice system. For members of the United States military, this set of legal standards are enshrined in the Uniform Code of Military Justice (USMJ).
When accused of any violation, the individual (defendant) will face a court-martial to determine guilt or innocence in an manner similar to regular civilian courts – a court martial is the military’s version of a civilian criminal trial, although there are significant differences to be aware of. Like a civilian defendant can access a civilian-appointed lawyer/attorney, when a (military) case is lodged, the defendant will have access to a military-appointed lawyer.
As court-martial proceedings differ slightly from civilian courts, it may be in the individual’s best interest to consult a civilian lawyer with knowledge and experience of the military justice system. This article briefly outlines how the military court system works and three compelling reasons to hire a private defence lawyer.
How Does A Court-Martial Work?
When an individual is accused of violating a provision(s) in the UCMJ, they will appear before a court-martial.
What happens in a military court is quite different from civilian courts, especially in the way that it is set up. There are three types of court-martial, depending on the gravity of the offense being investigated.
|Summary Court-Martial||1. Organised to hear less serious cases of UCMJ breaches.|
2. Commissioned officer acts as the judge and jury (and does not need to be a lawyer).
3. The individual does not have access to a military-appointed lawyer but may hire a civilian military lawyer.
4. If found guilty, penalties/punishments may include one-month confinement, hard labour, rank demotion, or pay forfeiture.
|Special Court-Martial||1. This is the equivalent of a misdemeanour court case hearing in civilian courts.|
2. However, there are only at least three officers and a military trial judge who will decide on the case.
3. An individual will have access to a military-appointed legal counsel, also called a Judge Advocate General (JAG) officer, or may hire a military criminal defence attorney.
4. If found guilty, penalties/punishments may include a bad conduct discharge, one-year confinement, a three-month period of hard labour without confinement, and forfeiture of up to two-thirds of monthly pay for up to one year.
5. Pay may (also) be reduced to the lowest salary grade.
|General Court-Martial||1. This is the civilian court’s equivalent of a felony case, which means that the individual is accused of a serious offense.|
2. Can only be convened by the president, secretary of defence, the commanding officer of a major military installation or by a general or flag officer.
3. At least five members and a military judge will be present, although the individual can request for the military judge to evaluate the case exclusively.
4. The individual will have access to a lawyer and a private military attorney.
5. If found guilty, penalties/punishments can be broad-ranging, and may even include the death penalty (can impose any punishment not prohibited by the UCMJ rules).
Why Does An Accused Need A Civilian Military Lawyer?
If a crime violates both military and state civilian law, the individual could be tried by a military court and a civilian court – meaning it is important to have a lawyer and a firm well-versed in the military justice system and civilian criminal defence. Further, a lawyer can provide information, guidance, and representation for the entire court-martial process, including:
- The initial Article 32 hearing or preliminary hearing;
- Advising you on your right to select an appropriate forum, e.g. military judge alone or a trial with panel members; and/or
- Filing motions on behalf of the individual and pursuing a defence at the actual trial.
Now that you are aware of the processes involved in a court-martial, you may appreciate why being represented by a civilian defence lawyer is important.
However, to learn more about the important of legal representation, below are three specific reasons to consult a civilian military lawyer:
1. To Build A Strong Defence Strategy
Frequently, an individual will only be assigned a JAG defence attorney after an investigation has been conducted. Simply put, an individual may not have a lawyer to defend their rights while being investigated or questioned.
This means the individual may not have legal representation to ensure they are not subjected to confess under duress, regardless if the pressure was implicit or explicit. In civilian law, a defence lawyer is critical during an investigation as they can question the means and methods of information collection that may be considered unlawful.
Besides lack of preparation, a military lawyer assigned to an individual may not be as experienced in litigation as a civilian counsel. To increase the odds of getting acquitted, a private lawyer will protect the individual against self-incrimination and can work alongside their JAG lawyer to strengthen the defence strategy.
2. To Avoid Major Losses
While an individual may have access to a military-appointed lawyer pro bono, a civilian lawyer may be more capable of protecting the individual’s rights before a military court.
As mentioned, there are critical factors at stake once an individual is found guilty of an offense, especially if it is considered a more serious breach – for instance, failure to obey order or regulation.
An individual may lose their freedom, military rank, have some of their military pay and bonuses forfeited for a certain period, or worse, lose their military retirement perks and other benefits as a veteran. A dishonourable discharge may also be viewed unfavourably by any potential employers as a civilian worker (which can impact pay and roles available).
3. A Civilian Legal Counsel Is Undeterred
A civilian military lawyer is legally obligated to protect and defend their client’s interest; in this case, it is the accused military service member facing court-martial. Unlike JAG defence lawyers – who are still part of the system attempting to prosecute the defendant – a civilian military attorney will not be intimidated by the chain of command. A civilian defence lawyer does not have to be worried about losing a rank or a job, gaining promotion, or getting a poor performance rating.
The Bottom Line
Whether facing a civilian or a military court, time is of the essence when it comes to building a strong defence strategy. This means speaking with a civilian attorney even before formal charges have been filed against you in a military court, and this is especially true if the individual is facing charges relating to a serious offense.
Consulting with, or hiring, a private lawyer to represent you will entail costs, but an acquittal is worthwhile considering the things at stake with a guilty verdict.