If you are a service member, you know that military life is different from civilian life. It should not be a surprise, then, that the legal system for military members is also different. While military law and court-martial rules follow civilian procedures in many ways, the real-world needs of the armed forces create major variations.
In the civilian world, the focus of the law is public safety, preventing bad behavior, and resolving disagreements peacefully. But for the military, discipline is the main goal. As General George Washington said, “Discipline is the soul of an army.” The courts-martial system, governed by the Uniform Code of Military Justice (UCMJ), is set up to maintain that discipline and readiness within the ranks.
Here is a look at the biggest differences between military courts and civilian courts.
Jurisdiction and the Focus of the Law
The military has its own specific set of laws, the Uniform Code of Military Justice (UCMJ), which applies to all service members whether they are serving at home or in another country. Civilian law is a combination of local, state, and federal laws enforced by judges and various law enforcement agencies.
Sometimes, a service member who commits a crime off base may be subject to both civilian and military prosecution. This overlapping jurisdiction can get complicated. The Supremacy Clause of the U.S. Constitution states that federal law is primary over state law when they conflict. However, this doesn’t always stop both systems from pursuing charges. They might decide to defer to one another based on the case and what is fair.
Military-Specific Offenses
One of the clearest differences is that the military justice system includes crimes that do not exist in the civilian world. These are known as military-specific offenses, and they are designed to maintain good order and discipline.
For instance, offenses like desertion, malingering, mutiny, and failure to obey a lawful order or regulation are distinctly military. Another classic example is the charge of “conduct unbecoming an officer and gentleman” which covers both male and female commissioned officers, cadets, and midshipmen. These laws make certain military behavior criminally punishable.
Rights Advisements are More Proactive
Everyone knows about Miranda rights from civilian law. In the civilian system, you are advised of your rights after you are taken into custody and before questioning.
The military’s rule, known as Article 31 rights, is much more protective. A military member must be advised of their rights whenever they are questioned about a suspected offense by any other military member acting in an official capacity. The service member does not have to be in custody to trigger this advisement. This rule is there to protect service members who are taught to obey their military chain of command from giving statements that could be used against them.
Guilty Pleas and the “Care” Inquiry
In civilian courts, a person can sometimes plead guilty without actually admitting they believe they are guilty, using pleas like nolo contendere (no contest) or Alford pleas.
The military does not allow this. A service member may only plead guilty if they truly believe they are guilty. For a guilty plea to be accepted, a military judge must conduct a detailed questioning on the record called a “providence” or “Care” inquiry. The “Care” term comes from the case of United States v. Care, cited as 40 C.M.R. 247, which requires the judge to make sure there is a clear basis for the determination of guilt before finding the accused guilty.
Split Verdicts and Unanimity
Here is one of the biggest procedural differences: the military system rarely has mistrials because it allows for split verdicts in most criminal cases.
The federal system and almost every state (excluding Oregon and Louisiana) require a unanimous verdict from a jury to convict in a criminal trial. This is not the case in the military.
- General courts-martial (for the most serious offenses) require a concurrence of three-fourths, or six out of eight members, to convict.
- Special courts-martial (punishment is limited to one year in jail) also require a concurrence of three-fourths from a four-member panel.
- The only time the military requires a unanimous verdict is in capital cases, which requires a panel of 12 members.
The Rules of Evidence
Military law has historically tracked civilian law since the first Manual for Courts-Martial was published in 1895. When the Federal Rules of Evidence (FRE) came out in 1975, a Working Group was created to adapt them for the military courts-martial system.
In 1980, President Carter issued an executive order establishing the Military Rules of Evidence (MRE). The philosophy was to adopt the FRE almost word-for-word, only making minor changes to include military terms or when military necessity required a deviation. MRE 1102 even provides for the automatic adoption of amendments to the FRE unless the president decides otherwise, keeping the two systems closely aligned over time.
Punishments and Sentencing
The consequences of a conviction in a court-martial often look very different from a civilian trial.
Civilian courts use the Federal Sentencing Guidelines as a framework. Military judges also have discretion within the UCMJ guidelines, but they must consider the impact on unit cohesion and the service member’s record.
The types of punishments are different, too. While both systems use fines, imprisonment, and probation, military courts have unique penalties aimed at maintaining discipline and readiness. These include:
- Reduction in rank
- Forfeiture of pay
- Confinement to quarters
- Dishonorable discharge
The military also uses non-judicial punishments or “Article 15” actions to handle minor offenses without requiring a formal court-martial, which is not something the civilian system has.
Legal Representation and Appeals
A service member going through the military justice system is provided with free legal representation by a Judge Advocate (a military defense attorney). These Judge Advocates are trained in military law and represent clients in court-martials. However, service members can also hire civilian counsel at their own expense.
The appeals process is also specialized. Instead of going through state supreme courts, a service member can appeal to the service-specific Courts of Criminal Appeals and the highest military court, the Court of Appeals for the Armed Forces (CAAF).
Another unique aspect is the right to submit matters for clemency to the convening authority (the commander who referred the case for trial) after the court-martial. This allows for a final review of the outcome, considering the member’s history and career.
When you are experiencing the military justice system, you need a lawyer who understands these specific differences. You need an attorney who knows the UCMJ, the unique rules of evidence, and how to protect your military career. Do not go through a court-martial alone. Call our military defense attorneys today for a confidential consultation at (360) 908-2203.