From Investigation to Court-Martial: Who Decides What Happens

A servicemember learns that CID, NCIS, OSI, or another investigative agency is investigating an allegation of criminal misconduct. What happens next? Does an investigation automatically lead to charges? Who decides whether the case goes to trial?

The answer depends partly on the alleged offense and who has authority to make the charging and referral decisions.

Congress significantly changed that process when it created the Office of Special Trial Counsel (OSTC). The changes transferred important prosecutorial decisions involving specified offenses from commanders to specially qualified military prosecutors.

The accompanying Marine Corps flowchart illustrates the process from an initial allegation to referral for trial under the framework established by the FY2022 National Defense Authorization Act.

An allegation is not a conviction, or even a charge.

An investigation ordinarily begins when someone reports suspected misconduct. Investigators may interview witnesses, obtain documents, examine electronic devices, and collect other evidence.

The investigation may produce evidence supporting criminal charges. It may also uncover conflicting accounts, unreliable witnesses, or evidence that the alleged offense never occurred.

The defense need not wait until charges are filed to investigate the allegation independently, identify favorable witnesses, preserve evidence, or challenge investigative assumptions.

See our discussion of UCMJ investigations and representing servicemembers under investigation.

Who makes the charging decision

Historically, commanders exercised substantial authority over the disposition of alleged offenses. That remains true for many cases.

For covered offenses, however, special trial counsel exercise independent prosecutorial authority. Under R.C.M. 303A, special trial counsel determine whether an allegation involves a covered offense and may exercise authority over certain related or other known offenses.

The distinction matters. A special trial counsel may decide to pursue charges, dismiss charges, or defer a matter for disposition by command authorities, subject to the governing rules.

See R.C.M. 306A and R.C.M. 401A.

Preferral, preliminary hearing, and referral

Preferral is the formal act of accusing a servicemember of violating the UCMJ. It does not mean the accused will necessarily face trial.

An Article 32 preliminary hearing, when required, examines matters including probable cause, jurisdiction, and the form of the charges. It is not a trial, and its scope is more limited than the Article 32 proceedings familiar to practitioners decades ago.

We have previously discussed that change in You Get What You Ask For: Article 32s.

Referral is the decision to send specified charges to a particular court-martial for trial. For offenses over which special trial counsel retain authority, the special trial counsel make that decision. In other cases, the appropriate convening authority ordinarily makes it.

Referral does not establish guilt. The government must still prove the charges beyond a reasonable doubt at trial.

Why the investigative stage matters

A servicemember may understandably focus on the possibility of a court-martial. But some of the most consequential decisions occur months before anyone enters a courtroom.

Witnesses’ memories fade. Electronic evidence disappears. Investigators may overlook alternative explanations. Statements made early in an investigation can become central evidence at trial.

An effective defense begins by asking what the investigators have done, what they have not done, and what evidence might contradict the allegation.

For an overview of the later proceedings, see The Court-Martial Process: What to Expect and How to Prepare.

The flowchart illustrates the government’s decision-making process. It also identifies opportunities for defense counsel to intervene before those decisions become final.

An investigation may lead to trial. It need not. And the defense should not assume that the government’s investigation tells the whole story.

For the governing rules and subsequent amendments, consult the Joint Service Committee on Military Justice and the current Manual for Courts-Martial.

Investigators gather evidence. They interview witnesses, collect electronic records, review communications, and examine the allegations. But investigators do not necessarily find every witness or pursue every reasonable explanation.

That is why defense counsel should begin working before the government finishes its investigation.

We have helped clients by conducting independent investigations, identifying favorable evidence, examining inconsistencies in allegations, and presenting information that investigators or prosecutors had overlooked.

In some cases, those efforts have persuaded the responsible authorities not to pursue criminal charges.

For example, in a Navy sexual assault investigation, Cave & Freeburg investigated exculpatory communications and worked with the Navy Office of Special Trial Counsel. The Navy ultimately declined to bring charges. We describe that case, along with other representative results, on our Washington Navy Yard case results page.

Another Navy case ended without charges after NCIS completed its investigation and OSTC agreed not to proceed. See our Naval Station Norfolk case results.

These outcomes illustrate an important point: Defense counsel need not wait for charges before defending a client.

Read more about what to do when you are under investigation.

The charging decision: Commanders and special trial counsel

Congress changed the military justice system by transferring authority over certain serious offenses to independent special trial counsel.

Under R.C.M. 303A, 306A, and 401A, special trial counsel exercise authority over covered offenses and may exercise authority over other offenses as the rules permit.

The prosecutor must decide whether to pursue charges, dismiss them, or defer disposition to the command.

The distinction between preferral and referral is important. Preferral formally accuses a servicemember of an offense. Referral sends charges to a specified court-martial for trial. Neither decision establishes guilt.

Defense counsel can address evidentiary weaknesses, legal defects, and appropriate alternatives before the referral decision.

The Article 32 preliminary hearing

When required, an Article 32 preliminary hearing provides another opportunity to challenge the government’s case.

The hearing addresses probable cause, jurisdiction, the form of the charges, and recommendations concerning disposition. It is not a trial and does not determine guilt.

We have used Article 32 hearings to challenge unsupported charges and argue against prosecution.

In one Marine Corps case involving allegations of domestic violence, Cave & Freeburg investigated the evidence and challenged the charges at the preliminary hearing. The Marine Corps ultimately dismissed the charges, preserving the officer’s retirement.

See our Marine Corps Base Quantico representative case results.

Referral and trial: The defense continues

If the case proceeds to trial, the defense must be prepared to challenge the government’s evidence through motions, witness examinations, expert testimony when appropriate, and arguments before the military judge or members.

Cave & Freeburg has defended hundreds of courts-martial and administrative cases. We have obtained acquittals, dismissals, and other favorable dispositions in contested proceedings.

Our experience also extends beyond trial. We represent clients in military appellate courts, extraordinary writ proceedings, and post-trial matters.

That experience matters from the beginning. Decisions made during an investigation or preliminary hearing may affect the evidence available at trial and the issues preserved for appeal.

See our attorney profiles and representative case results.

The best tiem to defend a case may be before it becomes one

A criminal investigation can threaten a servicemember’s career, reputation, security clearance, and freedom even when no charges are filed.

Early legal representation allows counsel to protect the client’s rights, preserve evidence, conduct an independent investigation, and, when appropriate, communicate with investigators, commanders, and prosecutors before they make critical decisions.

At Cave & Freeburg, we do not assume that every investigation must end in a court-martial. We have seen cases end without charges because the evidence did not justify prosecution.

And when the government elects to proceed, we are prepared to defend the case at trial and, when necessary, on appeal.

If you are under investigation, do not wait until charges are filed to seek legal advice.

Contact Cave & Freeburg, LLP or call 703-298-9562 to discuss your case.

Past results do not guarantee future outcomes. Each case depends on its facts, evidence, and applicable law.