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Should all types of courts-martial defense be taken seriously?

In civil law, a misdemeanor is not the end of the world. For example, many types of traffic violations are classified as misdemeanors, and a speeding violation or running a red light may involve little more than paying the ticket. 

However, our law firm does not recommend the same approach when mounting a legal defense in a military proceeding. One need only consider the punishments to understand why. Although the Uniform Code of Military Justice (UCMJ) sets restrictions on the punishments that can be imposed in each of the three different types of courts-martial (summary, special and general), the negative impact to one’s career in the military should not be underestimated.

As background, there are commonalities throughout each type of courts-martial. The Military Rules of Evidence apply in each, as does the prosecution’s legal burden of proving guilt beyond a reasonable doubt.

However, there are some significant procedural differences between a summary, special or general court-martial, which we have listed in ascending severity. The most marked differences are in a summary court-martial, where an accused does not have a right to an attorney, nor the right to call his or her own witnesses, nor even the right to remain silent. For those reasons, there could be strategic advantage to utilizing an accused's right to refuse trial by summary court-martial. In addition, only one commissioned officer presides over a summary court-martial.

In contrast to a summary court-martial, a judge and panel of three or five members preside over special and general courts-martial, respectively. Comparable to a civilian bench trial, an accused may also request trial solely by a military judge in these two types of courts-martial. Some commentators have compared a special court-martial to a misdemeanor court in that its punishments cannot include conferment for over a year, similar to the felony imprisonment scheme for civilian criminal defendants. The punishments are restricted even more for a summary court-martial, where confinement cannot be imposed for over one month. 

In our next post, we explore a general court-martial in more depth.

Source: military.com, “Courts-Martial Explained,” copyright 2016, Military Advantage

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