Courts-Martial vs. Criminal Trial
When I tell someone I’m in the Air Force, or will be a judge advocate after graduation, I usually get a “Oh wow, that’s so cool!!!…”
…followed by silence because they have no idea what to say next 😂 (that, or they’ll go “like Tom Cruise in A Few Good Men!” To which I reply “yes, just like Tom Cruise.” Then I cry a bit internally because I know I’ll never have Jack Nicholson on the stand).
Regardless of the response, I totally get it. As a dumb law student with two measly summers in an Air Force legal office, I’d be a fraud if I pretended to know everything about the military or civilian legal systems. However, I do know some things, so here are ten notable differences between my life now (in Massachusetts criminal courts) and life in about a year (as a judge advocate in courts-martial).
Applicable Rules
Military courts are governed by the Uniform Code of Military Justice (UCMJ) and other mil-specific guides (for example, the Military Rules of Evidence and Rules for Courts-Martial). Civilian trials, on the other hand, fall under the U.S. Constitution and normal state or federal laws.
The different rules are somewhat reflected in the different terms used in courts-martial and civilian trials. To name just a few: the military “jury” is called a “panel;” military “defendant” is called “the accused;” military “complaining witness” is usually called the “victim;” and everyone is called by their military rank and last name.
Standing Courts
Civilian courts are ALWAYS churning; court is (generally) in session from 9am to 5pm, Monday through Friday, in several rooms within a single courthouse. In contrast, military courts-martial have to be “convened” and happen irregularly. In fact, the ‘docket’ of Air Force courts is publicized - you can find it here!
Charging a Crime
When a civilian is charged with a crime, the person doing the charging is some type of prosecutor. In the military world, a servicemember’s commander (after consulting with their judge advocate) is responsible for officially charging the servicemember with a violation of the UCMJ.
Service Dress vs. Business Dress?
As we’ve all seen on t.v. and in movies, civilian lawyers wear suits to court. Judge advocates do too, but their suits are a standard military uniform called “service dress.” This means everyone involved in a court-martial (lawyers, bailiff, the accused, the panel, AND some witnesses) all look alike…very odd, when you think about it.
Guilty Pleas
Little known fact: roughly 95% of civilian criminal cases (both state and federal) don’t ever go to trial. Instead, the defendant will accept a “plea deal” from the prosecutor (usually accepting a lower charge or lighter sentence in exchange for admitting guilt). Guilty pleas are so prevalent because the criminal legal system at present could never support trials for every person charged with a crime. (If you’re thinking, “wait…what??” Yep. That’s a topic for another time.)
In contrast, guilty pleas rarely occur in court-martials. The military judge must conduct a VERY thorough inquiry when an accused servicemember indicates their desire to plea guilty, and such pleas aren’t allowed at all when the government seeks the death penalty.
Defense Counsel
In the civilian world, defense attorneys are either retained privately or appointed by the court if the defendant can’t afford a lawyer. In the military, an accused servicemember is automatically assigned a defense attorney, regardless of their ability to pay. Like a civilian defendant, they can choose to retain private counsel at their own expense.
The biggest difference here is that both military ‘prosecutors’ and defense attorneys are judge advocates, employed by the Department of Defense. That’s VERY different from the civilian world, where prosecutors are employed by the State or federal government but defense attorneys are not.
Victims Advocates
Victims in civilian legal cases rarely have their own attorney. Contrary to popular belief, civilian prosecutors act on behalf of the public, NOT the victim, when they prosecute an alleged crime. In contrast, the military automatically assigns a JAG (called a “Special Victims’ Counsel” or “SVC” in the Air Force) to the victims of certain allegations. The SVC advises the victim throughout the criminal process, communicates with the government/defense attorneys/judge on the victim’s behalf, and represents them in court.
‘Jury’ Composition
There are HUGE differences between the composition of a military “panel” and civilian jury. The former is solely comprised of servicemembers, chosen randomly from those assigned to the accused’s duty station (that’s generally where the court-martial happens). A CM panel is also composed of all officers (or mostly officers, if an accused enlisted member so elects) AND those officers must outrank the accused. Finally, the size of the jury varies depending on what type of court-martial is convened (as low as four or as high as twelve).
Compared to its civilian counterpart, CM panels are a LOT less random than the “fair cross section” of society which makes up a normal, 12-person jury.
Unanimity in the Jury Verdict
A unanimous jury verdict is always a requirement in the civilian world. If the jury can’t come to a single decision, the trial ends in a “hung jury” and a new trial commences. In contrast, a unanimous verdict is ONLY required for military cases involving the death penalty. Per the UMCJ, only a three-fourths vote is required to convict a military defendant; if less than 3/4 vote for Guilty, the accused is acquitted.
Sentencing
Unlike civilian trials, where the judge determines the defendant’s sentence after the jury returns a guilty verdict, an accused servicemember can elect for panel sentencing (by the same servicemembers who just convicted them!). If the accused elects for panel sentencing, the panel must decide on a single sentence for all offenses. If the accused chooses judge-alone sentencing, the judge will determine appropriate fines/confinement for each individual specification.
Many of the differences listed above can be attributed to the fact that criminal trials and courts-martials serve slightly different purposes! Civilian criminal law and legal system are generally used to deter and stop ‘bad’ behavior, protect public safety, and resolve disputes in non-violent and ‘just’ ways. Military law and procedures, on the other hand, focus heavily on maintaining the discipline critical to any armed service. From both a prosecution and a defense point of view, there are “pros and cons” of each system - I’m sure those will grow more pronounced as I go along!
