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.
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