Court Martial Judge Alone or Jury

court martial lawyer

Ask a Court Martial Military Attorney

Although most trial decisions are made by the defense attorney on the case, there are a few decisions that an accused (the military term for “defendant”) must make. In a court martial criminal trial in the military, one of the decisions an accused must make is whether to request a trial before members (the military term for a “jury”) or a trial before the military judge alone. A good court martial military attorney will advise his or her client about the pros and cons of each choice, but in the end the decision belongs to the accused.

Judge Alone and Jury Explained

Before making this important decision, an accused should understand the difference between these two trial forums.

Although I use the term “jury,” a court martial does not really have a jury option as that term is known in civilian courts. A true jury is a panel made up of randomly selected people that are from the community, while “members” in a court martial are servicemembers selected by the convening authority (usually the Commanding General or Admiral that sent the case to trial).

The convening authority is required by Article 25, UCMJ, to use certain criteria in selecting the members. Article 25, UCMJ, requires the convening authority to select members of his or her command that are best qualified by reason of age, education, training, experience, length of service, and judicial temperament. While no particular rank is eliminated from consideration, these criteria usually result in the selection of more senior NCOs and officers to serve on the panel. Another rule states that no member will be junior in rank to the accused. Officers are tried by all-officer panels. Enlisted have the option of an all-officer panel or a panel that includes at least one-third enlisted members.

Although it is not technically a jury, a trial by members operates much the same as a trial by jury. The trial counsel (the military term for “prosecutor”) and the defense attorney have the opportunity to voir dire the members, which means questioning of the members to reveal any potential biases. The attorneys can “challenge for cause” any member who appears biased and the judge decides whether to grant the challenge. For example, in a sexual assault court martial, if a member had previously been raped, that member would likely be challenged for cause and excused by the judge. Each party, government and defense, also get one “peremptory challenge” against a member, far fewer than in most civilian courts. A peremptory challenge is one that does not require any sort of cause, but it cannot be used in a racially or gender-based discriminatory way.

Once the jury is “impaneled,” the court martial proceeds with opening statements, presentation of evidence, arguments from the attorneys, legal instructions from the judge, and deliberations by the members. The members decide whether the accused is guilty or not guilty of the charged offenses.

Civilian Jury Trials vs. Military Court Martial Trials

Unanimous Verdict Requirement

One enormous difference between civilian jury trials and military court martial trials is the unanimous verdict requirement. In civilian trials, a recent decision from the US Supreme Court (Ramos v. Louisiana) held that criminal convictions in civilian courts must be unanimous, meaning all of the jurors must agree that the defendant is guilty. The same is not true for military court martial trials, which only require agreement of three-fourths of the members for a conviction. So, on a panel of eight members, if six agree that the accused is guilty and two believe the accused is not guilty, the accused will be found guilty of the offense. While there are arguments currently before the military appellate courts to require unanimous verdicts, unanimous verdicts are not currently a part of the UCMJ and procedural rules applied to the military court martial system.

On the other hand, a military judge alone trial has no members. In a judge alone court martial, also known as a “bench trial,” the judge decides whether the accused is guilty or not guilty at the conclusion of the trial. Military judges are commissioned officers, usually from the same service as the accused. They are senior JAG officers, usually in the grade of O-5 or O-6, who have been appointed to the trial bench by the Judge Advocate General of their military department. Military judges have their own separate chain of command. They are not part of the command prosecuting the case. Military judges are supposed to be independent and unbiased. If they are not, the defense attorney has the opportunity to challenge the judge for cause (just the same as they would challenge a biased panel member).

Consult an Experienced Court Martial Military Attorney

The decision about whether to request a Jury or Judge Alone trial is an important one, but it is not the only decision an accused must make. The advice of a military attorney experienced in handling court martial trials is critical to a successful court martial defense. At Ganz and Bridges Law Office we have decades of experience with court martial trials. In fact, in addition to prosecuting, defending, and appealing hundreds of court martial trials, Mark A. Bridges served as a military judge in the Army for over ten years, ultimately as the Chief Trial Judge of the Army. If you are under military investigation or court martial charges have been preferred against you, call us today for a free initial consultation with an experienced military attorney.

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