Unanimous verdicts Update

In this earlier blog, I commented on the pending litigation over unanimous verdicts at courts-martial. As military defense lawyers we continue to support the advice given that the issue should be raised in all courts going forward.

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Unanimous verdicts at court-martial are not currently required by law. Under UCMJ, a guilty verdict in a general court-martial, which is the most serious type of court-martial, can be reached by a two-thirds majority of the members of the panel. This means that a defendant can be convicted of a crime even if one-third of the panel members do not believe that they are guilty.

However, there is a growing movement to require unanimous verdicts in courts-martial. In 2023, the House of Representatives passed a bill that would have required unanimous verdicts in courts-martial. However, the bill was not passed by the Senate.

There are several arguments in favor of requiring unanimous verdicts in courts-martial. One argument is that it would protect the rights of service members and ensure that they are not convicted of a crime unless all members of the jury agree that they are guilty. Another argument is that it would promote fairness and accuracy in the military justice system.

There are also some arguments against requiring unanimous verdicts in courts-martial. One argument is that it would make it more difficult to convict service members of crimes. Another argument is that it would be more difficult to reach a verdict in some cases, which could lead to hung juries. If the principle of innocent until proven guilty beyond a reasonable doubt is to be maintained, then appropriate “difficulties” in getting a conviction ought to be followed.

The debate over unanimous verdicts in courts-martial is likely to continue. It is an important issue that has implications for the rights of service members and the fairness of the military justice system. Unfortunately, there is betting that the Supreme Court will give deference to Congress as it usually does when Congress acts under its “Make Rules” authority to govern military discipline and justice.

Congress is subject to the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. But in determining what process is due, courts “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, §8.”

In the meantime, Congress has been paying some attention to the issue, as noted by the bloggers at Save Our Heroes.

Rebecca Kheel reported that Court-Martial Convictions Would Need Unanimous Jury Verdicts Under a Measure Added to Defense Bill. Military.com, 17 July 2023. Indications are that proposal won’t be adopted. UCMJ, court-martial, air force court, navy court, army court