Court-Martial Frequently Asked Questions (FAQ)

How is a military court-martial different from a civilian criminal trial?

A court-martial is not a civilian trial in uniform.

• It is governed by the Uniform Code of Military Justice (UCMJ), not state or federal criminal law.
• Commanders (or the Office of Special Trial Counsel for certain offenses) decide whether charges are brought and what forum applies.
• The “jury” is a panel of military members, selected by the convening authority—not randomly from the community.
• Panel members are senior in rank to the accused.
• Verdicts do not require unanimity.

These structural differences make military justice faster, more centralized, and procedurally unique—experience in this system matters.

Do court-martial verdicts have to be unanimous?

No.

In most courts-martial, a conviction requires a three-fourths vote of the panel—not unanimity. This is one of the most significant differences from civilian courts and materially affects trial strategy.

How does sentencing work in a military trial?

Military sentencing happens immediately after conviction.

• There is no delay between verdict and sentencing.
• The government presents matters in aggravation.
• The defense presents matters in extenuation and mitigation.
• Victims may give an unsworn statement.
• The same judge or panel determines the sentence.

What rights does an accused have at a court-martial?

An accused service member has extensive constitutional and statutory rights, including:

• The right to military defense counsel at no cost
• The right to hire civilian defense counsel
• The right to choose judge-alone or panel trial
• The right to remain silent or testify
• The right to confront and cross-examine witnesses
• The right to request witnesses and evidence
• The right to present mitigation and extenuation at sentencing

How—and when—these rights are exercised can determine the outcome of the case.

Should I have a civilian lawyer in addition to my military defense counsel?

Often, yes.

Military defense counsel vary widely in experience. Many have limited contested-trial exposure. An experienced civilian military defense lawyer can:

• Lead complex motion practice
• Handle expert witnesses and cross-examination
• Advise on forum selection and sentencing strategy
• Complement—not replace—your detailed military counsel

Most accused keep both.

Why does military-justice experience matter in a defense lawyer?

Because courts-martial operate differently.

Military experience means understanding:

• Panel dynamics and rank psychology
• Command influence issues
• Military-specific evidence rules
• Sentencing culture and norms
• How judges and members actually decide cases

Civilian criminal experience alone is not enough.

What does “forum selection” mean in a court-martial?

Forum selection is the accused’s right to choose who decides the case:

• Military judge alone, or
• Panel of members (jury equivalent)

Enlisted accused may request that at least one-third of the panel be enlisted. Forum choice is one of the most strategic decisions in a case.

How are court-martial panel members selected?

Panel members are chosen by the convening authority based on criteria like rank, experience, and leadership.

• General Court-Martial: typically 8 members
• Special Court-Martial: 4 members
• Capital cases: 12 members

Both sides can:

• Question members (voir dire)
• Challenge members for cause
• Use one peremptory challenge

What is an Article 32 preliminary hearing?

An Article 32 hearing is required before a General Court-Martial.

It is not a trial. Its purpose is to:

• Test whether probable cause exists
• Review charge form and legal sufficiency
• Recommend disposition (trial, reduction, dismissal)

The accused has the right to counsel, cross-examination, and to present evidence—but no obligation to testify.

Who is the Office of Special Trial Counsel (OSTC)?

The OSTC has authority over certain offenses, including:

• Sexual assault
• Child sexual offenses
• Domestic violence
• Murder

For these cases, the OSTC—not the command—makes charging decisions and prosecutes the case. These offices are staffed by senior, experienced trial attorneys.

When do court-martial punishments take effect?

• Confinement: usually immediate
• Reduction in rank / forfeitures: depend on service rules
• Punitive discharge: not effective until appeals are complete

What are the maximum punishments at a General Court-Martial?

A General Court-Martial is the most serious forum and can include:

• Confinement (up to life without parole for some offenses)
• Total forfeitures
• Reduction to E-1 (enlisted)
• Bad-conduct or dishonorable discharge (enlisted)
• Dismissal (officers)

Actual exposure depends on the specific charges.

How long does it take to go to trial after charges are referred?

By law, trial cannot begin until at least three days after referral. In practice, courts-martial typically take months, depending on complexity, motions, and scheduling.

Bottom line

Courts-martial move fast, operate differently, and carry career-ending consequences. Early decisions—forum selection, counsel choice, motion strategy—matter.

If you’re under investigation or facing charges, speak with a lawyer who regularly tries courts-martial, not one learning on your case.f all parties involved.

By PhilIp Cave and Nathan Freeburg at www.court-martial.com