February 3, 2016
Superficially, the Courts Martial that try Service men and
women accused of crimes look a lot like the trials where civilian defendants
get their day in court. But while outwardly similar, Courts Martial differ from
civilian trials in substantial and important ways. These differences are often
to the disadvantage of the Soldier, Sailor, Airman or Marine accused of a
crime. Because of this, it is all the more importantthat a Service Member
accused of a crime mount an aggressive and effective defense from the outset of
the investigation.
Probably the most important difference between a Court
Martial and a civilian Court is the finder of fact. In civilian trials, guilt
or innocence is determined by a jury – an impartial group of men and women,
unconnected with the prosecution, the defense, or the court itself, chosen from
among the community at large. In most States a jury consists of 12 jurors and
must reach a unanimous decision as to whether the accused is guilty or
innocent. In a Court Martial, the finder of fact is a Panel of Service Members
of equal or greater rank than the accused. Federal Courts have held that a
Court Martial Panel is not a jury, and for good reason. Unlike most civilian
juries, General Court Martial Panels can be as small as five members. More
significantly, unlike most juries, these Panels are not required to reach
unanimous verdicts, but decide on a two-thirds majority vote (except for
capital cases). These differences may have extremely important practical
effects. Research has shown that smaller juries are more likely than larger
ones to produce an erroneous verdict. Likewise, the same research has shown
that juries allowed to reach verdicts by majority vote are also more prone to
reaching erroneous verdicts, because a majority faction can, in effect, lock
out the minority and reach a verdict without deliberating, or at least without
deliberating adequately. These problems mean that an innocent defendant in a
Court Martial may face a greater danger of being wrongly convicted than a defendant
in a civilian court.
Another difference between Jury trials and trials by a
military court is the composition of the panel. Juries are composed of private
citizens called from the community at large, who may be expected to come from a
wide variety of backgrounds. By contrast, a Court Martial Panel is drawn from a
much more homogenous population – personnel of the same Armed Service as, and
of equal or greater rank than, the defendant. Unlike a jury, where the members
have no connection with the judiciary or the prosecution, the members of a
Court Martial Panel are all military professionals likely to strongly identify
with their Service and command – in other words, with the very authority that
is prosecuting the defendant. This sense of identification may consciously or
unconsciously prejudice them against the accused.
While a vigorous and active defense is vital for anyone
accused of a crime, the peculiarities of Courts Martial make an effective
defense all the more important for Service Members so accused.
Effective February 16th, 2016, I will be joining SRIS Law
Group in an Of Counsel capacity. The attorneys at SRIS Law Group care deeply
about the men and women who have sworn to uphold our Constitution and defend
our Republic. If you are a Service Member facing Court Martial, let us defend
you.
If you need help with an issue related to the UCMJ, do not
hesitate to contact us. We understand that in a lot of instances, the UCMJ can
have a significant impact on your life and how your career is a vital part of
your life. Take any alleged violation of the UCMJ seriously and contact us for
help. We have the support and help you need.
We have client meeting locations in Virginia & Maryland.
If you need a military attorney in Virginia or Maryland, do not hesitate to
contact us. Our firm will defend you not only in Virginia and Maryland, but
throughout the US and the world if necessary.
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