Court-Martial Frequently Asked Questions

Question 1.

How Does a Military Court-Martial Differ from a Civilian Trial?

If you find yourself facing charges in the military, you’ll quickly notice that the court-martial process marches to the beat of its own drum—quite different from what you see on Law & Order or in most civilian courts. Here’s what sets it apart:

• Unique Legal Structure: While the civilian system is governed by state or federal statutes, courts-martial operate under the Uniform Code of Military Justice (UCMJ). This is a whole different rulebook with its own standards and procedures, written by—and for—the military.
• Command Involvement: In the military, your chain of command isn’t just your boss; they’re also the gatekeepers of the legal process if the allegation is not a “covered offense” under the Office of Special Trial Counsel (OSTC). Commanders decide if charges get filed, what type of court-martial convenes, and sometimes even influence sentencing. That’s a sharp contrast to the civilian world, where independent prosecutors make most of those calls.
• Rights and Representation: Certain elements might look familiar—for example, you still have a right to counsel (yes, your own “JAG” attorney or a private lawyer, if you wish). But the timelines, discovery rules, and even the manner of jury selection (“panel members,” in military-speak) have their quirks.
• Jury of Your Peers? Sort of: Civilian defendants can expect a 12-member jury pulled from their community. In a court-martial, you face a smaller panel, handpicked by the convening authority (your commander) and made up exclusively of military personnel— higher-ranking than you.

In sum, the military system isn’t just court in camouflage—it’s a distinct beast that anyone facing charges should take seriously. Having counsel who speaks fluent UCMJ can make all the difference when navigating this complicated terrain.

Question 2.

What are the differences between the military civilian systems with regard to verdicts and sentencing?

When it comes to courtroom procedures, military and civilian trials go about things quite differently—especially in two areas: how verdicts are reached and how sentencing unfolds.

Let’s start with the verdict. In the civilian world, we’re all used to television scenes of a tense jury room where “guilty” has to be unanimous. Not so in a military court—there, only three-fourths of the panel need to agree on a conviction. This lower threshold means that a split decision can still lead to a conviction, which may come as a surprise to those more familiar with the 12-angry-jurors scenario.

Next up is sentencing. In civilian trials, there’s often a waiting period between a guilty verdict and the actual sentencing. This gap allows time for things like pre-sentencing reports, plus a breather for everyone involved. Military justice, on the other hand, doesn’t believe in a pause: as soon as the verdict is in, the trial moves directly to the sentencing phase. There’s no lull between the two.

Question 3.

What are the key rights of an accused during a military trial?

Key Rights of an Accused in a Military Trial

If you or someone you know is facing a military court-martial, it’s essential to understand the fundamental rights granted to the accused throughout the process. While each situation is unique, these core protections ensure fairness and due process—think of them as your personal toolkit for the trial ahead.

Representation: Military and Civilian Counsel
You have the right to defense counsel appointed at no charge by the military. Depending on your branch, the experience level of your assigned attorney could vary—so don’t hesitate to ask about your lawyer’s background, both in terms of legal experience and specific familiarity with cases like yours. In addition to your detailed military counsel, you may request another military lawyer (rules differ by branch), but typically only one will be provided without cost.

If you want to engage a civilian attorney—whether they’ve got years of JAG experience or an extensive record in military law and trials—you’re free to do so at your own expense. Most people choose to keep their assigned military counsel as backup, since two heads (and two perspectives) are usually better than one during these proceedings.

Motions and Evidentiary Hearings
You’re empowered to raise legal motions before and during trial to address contested points, challenge evidence, or clarify the charges. Your legal team will steer the ship here, helping ensure any irregularities are identified and corrected early.

Trial by Judge or Jury Panel
You can choose to have your case decided by a military judge alone or by a panel of court members. If you’re an enlisted service member, at your request the panel must include at least one-third enlisted personnel—usually selected from outside your immediate chain of command to protect impartiality.

Panel selection is more than a roll call. Both sides can question and, in some cases, challenge potential panel members to ensure a fair jury. This is where an experienced trial lawyer comes in handy—sometimes, the best strategy is the one based on years of observing human behavior in the courtroom, not just guesswork.

Challenging the Government’s Evidence
The burden always lies with the government to prove your guilt beyond a reasonable doubt. You and your counsel can challenge the evidence against you using the Military Rules of Evidence. You also have the right to request witnesses and relevant records that could aid your defense.

Discovery and Witness Access
You can access information that the prosecution has through discovery procedures. If there are witnesses or documents essential to your case, your counsel can formally request their production for court.

Confrontation and Cross-Examination
You have the right to confront and cross-examine any witnesses against you. Effective cross-examination means more than asking questions—it’s about strategic preparation and understanding how testimony fits into the broader case.

Remain Silent or Testify
Every accused can choose to remain silent (no assumptions can be made about this choice) or take the stand to testify. Deciding whether to testify is a significant decision, often made after practicing courtroom exchanges and mock cross-examinations with your lawyer—because preparation (and a bit of role play) is key to making the right call.

Presenting Mitigation and Extenuation
If convicted, you may present evidence or statements in extenuation (to lessen the seriousness) or mitigation (to show circumstances that warrant a reduced sentence). This is your chance to provide context and show a fuller picture of your character and circumstances.

In Summary:
These rights form the backbone of your defense during a military trial. Exercising them thoughtfully—and with a skilled advocate in your corner—helps ensure you aren’t just another name and number in the system, but an individual with a voice and a future worth fighting for.

Question 4.

What are “matters in aggravation,” “extenuation,” and “mitigation” in the context of military sentencing?

Matters in Aggravation, Extenuation, and Mitigation

In the context of military sentencing, these terms refer to the types of information each side presents after a conviction. The government, through the Trial Counsel, kicks things off by introducing “matters in aggravation.” Think of these as details designed to give the court a sense of the severity or broader impact of the offenses. This might include the accused’s service record, prior misconduct, or anything else directly tied to what the accused was found guilty of.

Once that’s wrapped up, it’s the defense’s turn. Here, you’ll hear about “matters in extenuation and mitigation.” In plain English, extenuation covers facts that might lessen the gravity of the offense—maybe the accused was under duress or had limited intent. Mitigation, on the other hand, brings in evidence that could warrant a lighter sentence, like the accused’s past good conduct, stellar work history, or other redeeming qualities.

The end goal? To help the court consider not just the offense, but also the context and the individual’s story before deciding on an appropriate sentence.

Question 5.

What should you consider when choosing a defense counsel in a military trial?

Choosing Your Military Defense Counsel: What to Keep in Mind

When facing a military trial, selecting the right defense counsel is one of the most significant decisions you’ll make. While every service member is assigned a military lawyer at no charge, it’s wise to look beyond simply accepting the first name you’re given.

Consider the following factors when evaluating potential counsel:

• Experience Matters: Not all military lawyers have the same background. Some may be seasoned advocates with years as defense counsel, while others could be recent law school graduates new to this area. Don’t hesitate to ask about their experience—general legal work, time as a defense attorney, and, most crucially, track record in cases similar to yours.
• Requesting Alternate Counsel: If you have someone in mind—perhaps another JAG officer whose reputation you trust—you can ask to be represented by them, provided they’re available. However, be aware: in most situations, if a new military lawyer is appointed, you may have to give up your first one unless an exception is made.
• Adding Civilian Counsel: You’re entitled to hire civilian defense counsel at your own expense. If you choose this route—whether it’s a renowned national defense attorney or a local specialist in military law—you can generally keep your military lawyer as part of your legal team. It’s rarely wise to go without a military lawyer entirely; their expertise in navigating the system is invaluable.
• Vetting Civilian Lawyers: As with military counsel, do your homework. Ask about their military law experience, familiarity with the Uniform Code of Military Justice, and even details like prior service in the armed forces or as a Judge Advocate. Don’t be shy—ask for case examples, number of courts-martial handled, and how much time they’ll be able to devote to your case.

Some of these conversations can feel awkward, but clarity at the outset is essential. The stakes couldn’t be higher—so take the time to assemble the best defense team possible.

Question 6.

Why is it important for an attorney to have military experience when representing someone at a court-martial?

Why Military Experience Matters in Court-Martial Defense

Although some of the offenses charged at a court-martial may sound familiar—think assault, larceny, or drug use—the military justice system is its own animal. The rules, the procedures, and even the courtroom culture are very different from what you’d find in your standard local courthouse.

That’s why it’s vital for anyone facing a court-martial to have an attorney who truly knows their way around military law. Experience in the military justice system means understanding not just the Uniform Code of Military Justice(UCMJ), but also the customs, unwritten expectations, and unique challenges that come with defending service members. It’s almost like hiring a local guide for a jungle trek—someone who knows which vine is the shortcut and which is a snake.

In short, a lawyer who has handled civilian cases, but has never stood before a military judge or argued with a panel of officers, simply isn’t bringing the right toolkit. When your career and freedom are at stake, experience here makes all the difference.

Question 7.

How does the right to testify work for an accused in a military trial?

Understanding the Right to Testify in a Military Trial

If you’re facing a military court-martial, you may be wondering about your right to testify. Here’s what you need to know:

The right to testify means you can—if you choose—take the stand and speak directly to the court and jury. Whether or not you should testify is a significant decision, and it’s not made lightly. Your defense attorney will walk you through the pros and cons, and the decision is ultimately yours.

Preparation is key here. A seasoned military defense lawyer won’t just discuss this decision in theory. Instead, they’ll take you through realistic practice sessions—mimicking the courtroom environment, running through direct and cross-examinations, and spotlighting the tough questions you might face. This process helps you understand what testifying actually feels like, and gives your attorney the chance to evaluate how you might come across to the panel or jury.

Your lawyer’s experience matters. An attorney familiar with the nuances of military law knows how crucial your testimony—or your silence—can be to your case. The decision to testify isn’t just a checkbox; it’s a pivotal moment that could shape the outcome of your trial. That’s why thorough preparation and honest discussion with your defense counsel are essential before you ever step into the witness box.

Question 8.

What preparation is involved for an accused who wishes to testify in a military trial?

Preparing to Testify in a Military Court-Martial

Testifying on your own behalf is a decision that carries tremendous weight, and it’s not just about sitting in the witness chair and recounting your version of events. Before making this choice, it’s essential that you, as the accused, thoroughly understand what the process involves—and why the preparation matters so much.

A seasoned civilian or military defense counsel should walk you through every stage of this process. This goes beyond quick consultations or handing you a list of “dos” and “don’ts.” The real preparation starts with immersive practice, often in the very courtroom where the trial will occur. Think of it as a dress rehearsal: you’re guided through direct examination first (answering questions from your own counsel) and then subjected to the rigor of a mock cross-examination, simulating the tough questioning you’re likely to face from the prosecution or government attorney.

Why such exhaustive role-play? For one, the courtroom environment isn’t exactly comfortable—there’s a reason television dramas ramp up the drama. Practicing ahead of time exposes you to the pressure, helps manage nerves, and teaches you how to respond clearly without being tripped up or rushed. This hands-on preparation not only builds your confidence, but it also enables your defense attorney to see how you handle the unexpected and to give specific guidance tailored to your strengths and vulnerabilities.

Ultimately, deciding whether to testify is a joint effort: your input, weighed carefully with your counsel’s expertise. The more realistic your trial preparation, the better both you and your attorney can assess the wisdom of taking the stand. Your future may hinge on these moments—don’t settle for anything less than thorough, experience-driven practice.

Question 9.

What is the process for challenging and excusing court members in a military trial?

Challenging and Excusing Court Members in a Military Trial

In military trials, the process for excusing court members—often referred to as “members” or the panel—follows a well-ordered procedure. Generally, a member can only be removed for cause if it’s shown they can’t be impartial or fair; there are no unlimited “freebies.” The burden is on demonstrating bias, interest, or another disqualifying factor before the member will be excused.

That said, both the prosecution and the defense have a chance to ask questions (called voir dire) aimed at uncovering bias or anything that could affect a member’s impartiality. This is more than a formality—it’s an opportunity to dig into each member’s background, sometimes referencing their answers on official data sheets provided before trial.

There’s also what’s called a “peremptory challenge.” Here, each side can strike one member from the panel without having to explain why—no need to prove bias or unfairness, one chance per side. Think of it as your one shot to play a hunch when reviewing the composition of your court. Often, deciding whom to challenge involves both the facts in those background sheets and a dose of intuition honed from years in the courtroom.

Question 10.

What does the right to select a forum mean in a military trial, and how are court members selected?

Forum Selection and the Composition of Court-Martial Panels

When facing a court-martial, you have the pivotal right to choose how your case is decided—a decision known as selecting your “forum.” This essentially means you can elect to have your case heard and decided by a military judge sitting alone or by a panel of court members (sometimes compared to a jury in civilian court).

If you choose a judge-alone trial, the military judge carries the weight of determining your guilt or innocence. If you opt instead for court members, here’s how that plays out:

• Court members are selected from service members, and—should you be enlisted yourself—you can request that at least one-third of the panel be enlisted personnel as well. This helps ensure your peers are represented.
• Importantly, the system is designed so no member of the panel comes from your own unit or holds lower rank than you.
• The court members, when determining guilt, use a secret written ballot to cast their votes, protecting impartiality and transparency.

Selecting and Challenging Court Members

Court members aren’t just picked at random. Both the prosecution and defense have a chance, before trial, to question possible members to try to weed out anyone who might harbor bias or can’t be impartial. This process, known as voir dire, is vital in safeguarding fair proceedings.

• Each side gets at least one opportunity to excuse a potential panel member without needing to prove a specific bias (these are called peremptory challenges).
• Further, if there’s evidence a member can’t be fair, they may be removed for cause.

Experience matters when deciding which panel members to keep or challenge. Sometimes, counterintuitive strategies come into play based on the complex realities of military culture and case specifics. For instance, prevailing wisdom about panel composition in certain cases may not always hold true—seasoned defense counsel weigh these factors carefully.

Question 11.

What is the right to confront witnesses, and how is it exercised in a military trial?

Right to Confront Witnesses in Military Trials

The right to confront witnesses is a cornerstone of any fair trial—and military proceedings are no exception. This right ensures that the accused has an opportunity to question, or “cross-examine,” those testifying against them. But it’s more than just asking questions spontaneously in the courtroom.

Effective confrontation takes careful strategy and preparation. Thoroughly reviewing each witness’s anticipated testimony, interviewing them—sometimes multiple times—and analyzing how each witness’s account fits into the overall defense plan are all vital steps. This approach allows defense counsel to challenge credibility, highlight inconsistencies, and expose potential biases. In short, exercising the right to confront witnesses isn’t merely a formality; it’s a practiced legal skill that can shape the outcome of a military trial.

Question 12.

When do sentences such as confinement, reduction in rank, forfeitures, or punitive discharge take effect in a military trial?

When Sentences Take Effect in Military Trials

If you’re curious about the timing of different sentences after a court-martial, here’s what typically happens:

• Confinement: If confinement is part of the sentence, it almost always begins right away—immediate effect, with only a few rare exceptions.
• Reduction in Rank or Forfeitures: These don’t always kick in instantly. The effective date depends on the rules and procedures of the accused’s branch of service, so timing can vary.
• Punitive Discharge: Unlike the others, a punitive discharge (such as a Bad-Conduct Discharge or Dishonorable Discharge) is not final until all post-trial actions and appeals have run their course. Only then does it take effect.

In short, confinement is usually immediate, while other punishments may be subject to administrative or appellate steps before becoming final.

Question 13.

What is the required vote threshold for conviction in a military trial, and how does it differ from civilian courts?

• In military trials, a conviction doesn’t require a unanimous decision like in most civilian courts. Instead, if at least three-fourths of the panel members agree that the accused is guilty of an offense, that’s enough to secure a conviction under the Uniform Code of Military Justice (UCMJ). This lower threshold can significantly impact the outcome compared to the civilian standard, where all jurors must agree on a verdict.

Question 14.

What types of evidence are presented by the government and the defense during sentencing?

What Evidence Is Presented During Sentencing?

Just as with the earlier stages of a court-martial, sentencing unfolds in a specific sequence. First, the government (usually represented by the Trial Counsel) kicks things off. They’ll put forward a range of required materials drawn from the accused’s military service record, along with any other information that directly ties to the offenses of conviction. This set of evidence is often called “matters in aggravation”—essentially, anything that can shed light on the severity or impact of the offense.

After the government wraps up, a victim of a convicted offense can give an unsworn statement in addition to the government’s sentencing case.

After the government and any victim wrap up, it’s the defense’s turn. Here, the accused can introduce “matters in extenuation and mitigation.” This might include evidence about their character, service history, or anything that helps the court understand circumstances that may lessen the perceived seriousness of the misconduct or warrant a more lenient sentence. Both sides get an opportunity to shape the court’s perspective before the final sentence is handed down.

Question 15.

How do court members deliberate and vote on findings in a military trial?

Deliberation and Voting Process in Military Trials

After both sides have delivered their closing arguments—each striving to make their case the most compelling—the judge steps in to lay out the ground rules for the next phase. The court members, who function much like a jury in the civilian system, then move into closed session to begin their deliberations. Guided by the judge’s instructions, they review the evidence, weigh the testimony, and engage in confidential discussion to reach a decision.

Here’s where military trials diverge from the Perry Mason reruns you might have binge-watched. Rather than requiring a unanimous verdict, the military system operates under a different standard: a conviction can be reached if three-fourths of the panel members vote guilty on any particular charge. This unique threshold is a staple of courts-martial, setting it apart from the all-or-nothing standard used in most civilian courts. Once the members have voted and a decision is made, the findings are formally announced to wrap up that stage of the proceedings.

Question 16.

What are the purposes and procedures of the Article 32 preliminary hearing?

Article 32 Preliminary Hearing: Purpose and Procedures

If a case is being considered for a General Court-Martial (GCM), the Article 32 preliminary hearing stands as a critical step. The main objectives of this hearing are twofold: to safeguard service members from unwarranted charges, and to provide an independent review before any case can be fully referred to trial.

An impartial Preliminary Hearing Officer (PHO), appointed by the convening authority, oversees the hearing. This officer evaluates whether there is enough evidence to support the charges, verifies that the charges themselves are properly formatted, and recommends the appropriate next steps, which may include proceeding to trial or even dismissing the case altogether.

Key Rights During an Article 32 Hearing:

• You’ll receive detailed information about the charges against you, as well as the identity of your accuser.
• With few exceptions, you have the right to attend the entire proceeding.
• You are entitled to legal representation throughout.
• The hearing will include disclosure of the witnesses and evidence known to the PHO.
• You have the right to remain silent and are protected from self-incrimination.
• Cross-examination of witnesses is permitted.
• You can request the attendance of witnesses and the production of relevant evidence, as long as requirements are met.
• Arguments, statements, or evidence in your defense, or to lessen or explain the circumstances, are allowed.

After reviewing all testimony and evidence, the PHO submits recommendations to the convening authority. While not mandatory, these recommendations often guide whether the case advances to a full trial or is resolved earlier. In most cases, once the Article 32 hearing concludes and a decision to refer the case is made, there is a waiting period before the formal trial date is set—giving all parties an opportunity to prepare.

This process ensures that any move toward a General Court-Martial is both deliberate and rooted in a fair assessment of the facts and circumstances.

Question 17.

How are court members selected for a court-martial?

Court-Martial Panel Selection: Who Sits on the Jury?

If you’re facing a court-martial, you might be wondering how the jury—the official term is “members”—is actually chosen. Generally, unless you request to be tried by a military judge alone (which is an option), the panel is made up of commissioned officers, with enlisted service members included at your request if you’re enlisted yourself.

Here’s a breakdown of how the selection process works:

• Number of Members: For a general court-martial, you’ll see a panel of eight members (twelve in capital cases). In a special court-martial, the panel consists of four members.
• Inclusion of Enlisted Members: If you’re an enlisted accused, you can choose to have at least one-third of the panel made up of enlisted personnel. This is to help ensure your peers are represented on the panel.
• How Members Are Appointed: The “Convening Authority”—usually a senior officer in your chain of command (think O-6 or above)—is responsible for selecting the panel members. This official may draw members from within the immediate command, but sometimes may include members from elsewhere with appropriate coordination.
• Rotating vs. Standing Panels: Different branches take different approaches. In some services, a new set of panel members is chosen for each case, while others keep panels in place for several months, rotating them in as new cases arise.

This process is designed to provide impartiality, but if you have concerns about the composition of your panel, your defense attorney has the opportunity to challenge specific members during the trial process.

Question 18.

What is the purpose and content of closing argument in a military trial?

At the conclusion of a military trial, each side delivers closing arguments. This is the chance for counsel to pull together the major points of their case—offering the judge or panel members a clear, persuasive summary of why the evidence supports their position. Rather than simply repeating facts, attorneys use this time to highlight the strengths of their arguments, address weaknesses in the opposing side, and lay out why justice should favor their client. Closing arguments blend logic, analysis, and advocacy, with the goal of guiding decision-makers toward a verdict aligned with their theory of the case.

Question 19.

How does the military judge instruct court members during a trial?

How the Military Judge Guides Court Members

Before members of a military court deliberate on a case, the judge plays a crucial role in guiding them. First, there’s a session in court—without the members present—where the judge and attorneys hash out exactly what legal instructions the court members will hear. Since even the experts can disagree on legal points, this session helps the judge settle any disputes over what’s legally relevant or necessary.

Once everyone’s on the same page, the judge brings the court members back into the room and clearly explains the law as it applies to the facts of the current case. These aren’t just dry legal definitions—these instructions help members understand what rules to apply as they consider guilt or innocence.

Finally, after lawyers make their closing arguments, the judge gives the nuts-and-bolts instructions about how deliberations work, what procedures to follow, how to vote, and how to reach and announce a verdict. This ensures that everyone on the panel is following the right process, from start to finish.

Question 20.

What happens if the accused pleads guilty or not guilty in a military trial?

What Happens After a Plea in a Court-Martial?

Once the accused enters a plea—guilty or not guilty—the direction of the military trial becomes clear. Here’s how things typically unfold:

• Guilty Pleas: If the accused pleads guilty, the military judge doesn’t just accept that at face value. Instead, the judge will dive in with questions to make sure the plea is made voluntarily and with full understanding of the consequences. It’s a safeguard, ensuring no one is railroaded or confused about what’s happening. If the judge is satisfied, the trial skips right to the sentencing stage.
• Not Guilty Pleas: A not guilty plea means it’s officially game on. The trial moves forward, generally starting with opening statements where both legal teams outline what they expect the evidence to reveal. If the accused has chosen to be tried by a panel—think jury of military peers—the findings phase begins, and the case proceeds much like any other criminal trial, albeit with its own military flavor.

Throughout all this, both defense and prosecution can bring motions for the judge to decide on—everything from whether certain evidence should be included, to whether a confession was lawfully obtained. Once these housekeeping details are settled, the proceedings stay squarely focused on establishing guilt or innocence, or, if the plea was guilty, determining the appropriate sentence.

Question 21.

What choices regarding rights does the accused have at the beginning of a military trial?

Choices Concerning Rights at the Outset of a Military Trial

Right from the start of a military trial, the accused faces important decisions about their rights—decisions that can shape the course of the proceedings. Before the court members (your jury, in civilian terms) are ever brought in, the military judge will address the accused directly (with defense counsel at their side).

Here’s what the accused will be asked to decide:

• Selection of Representation: The accused chooses who will serve as their legal counsel. This might be a detailed military defense counsel, civilian attorney, or, both.
• How the Case Will Be Heard: The accused has the right to decide whether to have the case heard by a panel of court members (similar to a jury) or by a military judge alone.

These foundational choices set the tone for everything that follows in the trial process.

Question 22.

What is the sequence of events in a military trial process?

Sequence of Events in a Military Trial

• Arraignment, Entry of Pleas and Motions(Out of the Presence of Members):
  The trial kicks off with sessions held without panel members. During these, the military judge checks in with the accused about rights and representation—whether to have a military judge or a panel of members decide the case, for instance. Both the defense and prosecution may bring up various motions, like asking the judge to suppress evidence collected improperly or to challenge how statements were obtained.  The accused is also asked to enter a plea: guilty or not guilty. If a guilty plea is entered, the judge makes sure it’s voluntary and fully understood before continuing to sentencing. For a not guilty plea, the case moves to trial on the facts.
• Opening Statements:
  Both sides—the government’s Trial Counsel and the Defense—outline what they believe the evidence will show.
• Presentation of Evidence:
  The prosecution goes first, calling witnesses and presenting evidence. The Defense may cross-examine each government witness. Once the government rests, the Defense can either present its own case (with witnesses and evidence) or choose to remain silent.
• Rebuttal and Legal Instructions:
  Both sides may offer additional evidence in response to new claims raised in the other’s case. After this stage, the judge convenes with the attorneys (again, without members) to finalize instructions on the law that will be shared with the panel. Disagreements about these instructions are addressed here.
• Closing Arguments and Deliberations:
  Members return, receive the legal instructions from the judge, and hear closing arguments from both sides. These are the attorneys’ efforts to interpret the facts and law in their favor.
• Voting and Announcement of Verdict:
  The panel deliberates in a closed session. In the military, a conviction can be reached if at least three-quarters of the panel members agree—it does not require a unanimous vote. The verdict is then announced.
• Immediate Sentencing (If Convicted):
  Unlike many civilian courts, the military moves directly into sentencing after a conviction. The prosecution presents evidence related to the accused’s service and circumstances (“aggravation”). The Defense counters with evidence in “extenuation and mitigation.” The judge instructs the panel, arguments are made, and the panel decides the sentence.
• Carrying Out the Sentence:
  If the accused receives confinement, it begins at once (barring rare exceptions). Other penalties, such as forfeiture of pay or rank reduction, depend on service regulations and further processing or appeal.

Question 23.

What actions can the Convening Authority or Office of Special Trial Counsel take after an Article 32 hearing?

Actions the Convening Authority or Office of Special Trial Counsel May Take After an Article 32 Hearing

Once an Article 32 hearing wraps up, the ball lands firmly in the Convening Authority’s or Office of Special Trial Counsel’s court, and several outcomes are on the table. They review the recommendations from the Preliminary Hearing Officer (PHO)—but do not have to follow them.

Here’s what they can decide:

• Send the Case to Trial: Theymay refer the case to a General Court-Martial (GCM), meaning charges go forward and the trial process begins in earnest.
• Reduce Charges or Change Course: If they feels the matter doesn’t warrant a GCM, they can send the case to a lower level of disposition—such as a Special Court-Martial or even non-judicial punishment.
• Dismiss the Charges Entirely: Sometimes, after considering the preliminary evidence and the PHO’s take, they will decide there’s not enough to go on and will dismiss the case outright.

Question 24.

Who is the Office of Special Trial Counsel in a court-martial and what is their role?

Who is the Office of Special Trial Counsel and What Do They Do?

Except for certain older cases (generally for charged incidents before 2024), each service’s Office of Special Trial Counsel (OSTC) has jurisdiction over allegations relating to sexual assault, child sexual offenses, murder and domestic violence.  This office makes the charging and referral decisions for those cases and then prosecutes them.  They are composed of the most senior and experienced courtroom lawyers in each military service.

Question 25.

How does the court-martial process begin in the military?

How Does the Court-Martial Process Begin?

The court-martial process in the military usually kicks off after a law enforcement investigation wraps up. When an investigation uncovers possible misconduct, the findings are handed either to the Office of Special Trial Counsel or up the chain of command (depending upon the type of case).

From here, several paths are possible:

• Nonjudicial punishment (Article 15, Captain’s Mast)
• Administrative separation
• Other adverse administrative actions
• Formal court-martial proceedings

If the Office of Special Trial Counsel or command decides that a court-martial is the way to go, formal charges are prepared and “preferred”—now the service member is officially “the accused.” This step signals that the military justice system is in motion, and it’s more than just paperwork; it means the individual is now facing official charges.

For a General Court-Martial, the next step is an Article 32 hearing to make a recommendation as to whether the case should proceed.  This step is skipped for a Special Court-Martial.

Once the Article 32 hearing is complete, the charges are “referred” for trial. By law, the trial can’t start for at least three days after this referral—though in reality, there’s always a longer wait while everyone’s schedules are coordinated and the military judge sets a firm trial date.

Question 26.

What is a General Court-Martial and what are the potential punishments?

A General Court-Martial (GCM) is the most serious type of court-martial under the Uniform Code of Military Justice (UCMJ).  Sexual assault and domestic violence allegations are generally addressed at a GCM.

Potential Punishments at a General Court-Martial

The possible consequences following a GCM conviction are severe and can include:

• Reduction in rank to E-1 (lowest enlisted grade; officers cannot be demoted)
• Forfeiture of all pay and allowances
• Lengthy confinement—up to life without parole for certain convictions
• Bad Conduct or Dishonorable discharge for enlisted personnel or dismissal for officers
• Fines
• For capital cases (rare), even the death penalty—though most offenses do not rise to this level

In any given case, the actual maximum punishment depends on the specific charges and what’s allowed by law; most offenses do not carry the harshest penalties.

Question 27.

What is a Special Court-Martial and what are its maximum punishments?

Special Court-Martial: What It Means and What’s at Stake

A Special Court-Martial sits right in the middle of the military justice system’s hierarchy—serious enough to put your future on the line, but not reserved for the gravest offenses. Think of it as the “mid-weight” category in the court-martial world.

Maximum penalties at a Special Court-Martial include:

• Reduction in rank all the way down to E-1 (for enlisted)
• Forfeiture of up to two-thirds pay per month, for up to 12 months
• Confinement for up to a year
• A bad conduct discharge (for enlisted)
• Fines, which can’t add up to more than the total amount of allowed forfeitures

Unless you specifically ask for a trial by military judge alone, your case heard by a panel comprised of four members.

There is also a “forced” judge-alone Special Court-Martial where you do not have the option of selecting a panel.  The maximum sentence in this forum is six months and it is rarely used outside of the Marine Corps.

Question 28.

What types of pre-trial motions can be brought before a military judge?

Common Types of Pre-Trial Motions in Military Court

Before a trial even begins, both defense and prosecution have the opportunity to set some ground rules through pre-trial motions. These are formal requests asking the judge to decide certain legal questions upfront—think of them as the legal equivalent of deciding whether or not you can bring that oversized carry-on aboard.

Some of the most frequently raised pre-trial motions include:

• Motions to Suppress Evidence: Say law enforcement conducted a questionable search of your barracks room—your attorney might argue (motion) that any evidence gathered should be tossed out because your Fourth Amendment rights were violated.
• Motions to Exclude Statements: If you made statements before receiving a proper rights advisement, your lawyer may move to suppress these statements, citing violations of Article 31(b) or the Military Rules of Evidence.
• Motions Regarding Admissibility: Lawyers may spar over whether specific pieces of evidence—like texts, digital records, or physical items—meet the standards set by the Military Rules of Evidence. This can also include objections to hearsay or prejudicial material.
• Motions to Dismiss Charges or Specifications: Sometimes, the defense will push to drop a charge entirely, perhaps because it lacks legal merit, is overly vague, or simply doesn’t fit the facts as charged.
• Other Legal Issues: Lawyers can raise a whole host of other motions, like challenging the impartiality of the judge, seeking changes of venue, or requesting that certain witnesses or expert reports be allowed or excluded.

Pre-trial motions help clarify the playing field and, sometimes, can dramatically change the course of a case before the first witness ever takes the stand.

Question 29.

What is the timeline for proceeding to trial after charges are referred in a court-martial?

Timeline for Trial After Charges Are Referred

Once charges are referred for court-martial, there’s a mandatory waiting period before the proceedings can actually begin. By law, at least three days must pass between the referral and the start of the trial. In practice, though, the timeline is usually longer to allow both sides to prepare and to reflect schedules—think more along the lines of months instead of days. So, while the rules set a minimum window, the actual start date will depend on scheduling, case complexity, and the readiness of all parties involved.