How Does A Court Martial Differ From Civilian Criminal Trials

Basic Suspect Rights

Under the UCMJ, service members who are suspected of a crime are afforded basic rights. These "suspect rights" are more comprehensive than the rights offered to civilian suspects. Under Article 31 of the UCMJ, service members have a right against self-incrimination, and they must be informed of their suspected crimes before being questioned.1


Furthermore, all service members are entitled to have a free military defense lawyer when they are questioned as a suspect, presented with court martial charges, or are arrested or apprehended. However, unlike the civilian system, defense counsel is provided free of charge regardless of whether a service member has been deemed indigent.2

Pretrial Confinement

In the military, when a service member is suspected of a crime, the accused's commander has the authority to place the service member in jail.3
Once put in pretrial confinement, no bail or bond is set. Pending trial, the accused remains in confinement until his commander, a military magistrate, or a military judge chooses to release him or her. While in pretrial confinement, the accused remains employed by the military and continues to receive pay and allowances.4

Non-Judicial Punishment (NJP)

Non-judicial punishment (NJP) is a command leadership tool. It gives military commanders a quick means of maintaining good order and discipline. NJP is intended to efficiently correct misconduct at a relatively low level without the stigma of a federal conviction. NJP does not constitute a criminal conviction.5
The majority of crimes that occur in the military are dealt with by using NJP. Before imposing NJP, the commander must notify the accused member of the charges and provide him or her with supporting evidence. The service member may then seek legal advice. The service member can choose to accept the NJP or refuse the NJP and demand a trial by courts martial.6
It is crucial that a service member seek expert legal advice before the NJP proceedings. Turning down NJP and demanding a court martial should be done with extreme caution. Before turning down NJP, the accused must be fully advised of the serious, long-term consequences that may occur as a result of a court martial.7
Punishments at NJP vary based on the rank of the accused. Generally, punishments include: reduction in rank (enlisted only), forfeiture of up to two-thirds of a month's pay per month for two months, restriction, extra duty, and a reprimand. The maximum punishment at NJP varies based on the rank of the officer imposing the punishment; the higher the rank, the greater the punishment.8

Prosecutorial Discretion

The military justice system is different from the civilian criminal system because prosecutorial discretion lies with the commander rather than the prosecutor and law enforcement. A military commander has a wide range of options available to resolve disciplinary problems, including:
1) The commander can take no action.
2) The commander may choose to take administrative action, including a reprimand, rehabilitative transfer to another unit, counseling, or an administrative separation. The commander may chose to separate a service member for misconduct, homosexual conduct, pregnancy/lack of a family care plan, failure to adapt to military life, failure to meet height/weight standards, and many others. Furthermore, an administrative separation can result in the following types of discharges: honorable, general under honorable conditions, or under other than honorable conditions.
3) The commander may use non-judicial punishment to address disciplinary infractions.
4) The commander may choose to dispose of the offenses with a trial by court martial.9

Convening Court Martial

The military does not have permanent trial courts. Therefore, courts martial are convened or assembled on an as needed basis by military commanders. The UCMJ details which commanders may convene a courts martial. The commander with power to convene a court martial is called the convening authority. The convening authority determines the type of court martial that the accused will face, and the convening authority selects the court members (the military jury) that will hear the case and determine a sentence.10

Independent Judges and Defense Lawyers

A modern improvement in the American military justice system is that the trial judiciary and defense lawyers function independently from the prosecution and the command. Military judges are required to remain fair and impartial when presiding over courts martial. Military defense lawyers have the same duties as their civilian counterparts. They owe the outmost loyalty toward their clients and are supposed to zealously advocate on their behalf.11

Unlawful Command Influence

A common concern with the military justice system is that senior personnel will influence military jurors, witnesses, and others involved in the military justice process. This is known as unlawful command influence (UCI). UCI is often referred to as the mortal enemy of military justice.12 UCI calls into question the validity of the military judicial process, demoralizes military members and their confidence in the system and their command, and reduces public confidence in the military.13

While instances of unlawful command influence seldom arise, the military justice system has rules in order to limit its cancerous effects.14

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