Frequently Asked Questions

Military FAQ

Without a doubt, the military defense counsel assigned to trial defense offices are dedicated professionals who work tirelessly to obtain the best results for their military clients.  But some may have less experience with the military criminal process than others – they may be new to the legal profession, new to the military, or both. 

Often, military counsel will not be detailed to your case until after you have been charged with a crime.  These issues can take on a life of their own, and by the time charges are preferred, the opportunities that may have come from early intervention by counsel could be lost forever.  Hiring a civilian attorney as soon as you are aware that you are under investigation may help you to minimize or even eliminate the adverse consequences of a criminal investigation. 

And civilian counsel are not subject to the same career pressures faced by JAG officers, particularly those in their first tour of duty.  Civilian counsel are not distracted by “collateral duties,” and will not transfer in the middle of your case.  A civilian counsel has more control over his or her own caseload, while the military counsel’s caseload is dictated by the military.  And because they are part of the military rank structure, military counsel may be less likely to take an aggressive stance if such a strategy is called for.

If you hire civilian counsel, your military counsel remains an integral part of your defense team.  The civilian counsel is usually the “lead counsel” on the case, making strategic and tactical decisions regarding the case, while the military counsel is typically the “second chair,” but plays a critical role in the defense by performing such tasks as conducting legal research, gathering evidence, or drafting motions.  This can help reduce the cost of representation.  Also, as the person on the inside of the military organization, the military defense counsel has quick and easy access to a whole host of information that may be difficult and time-consuming for civilian counsel to obtain, such as information stored on government systems.

2.  What should I do if I am under investigation or questioned by my command or law enforcement?

Do not make any statements without first talking to a lawyer – politely refuse to answer any questions and invoke your right to counsel.  Then seek legal counsel immediately – you can go to your base legal office or speak with a civilian counsel.  Do not discuss the case or the investigation with anyone but your attorney.  Your friends may be on your side, but they may have to cooperate with the investigators and repeat things you thought were said in confidence. 

3.  How is the military justice system different from the civilian criminal system?

There are many differences, but the most significant differences have to do with warning of your rights when your are first questioned, pre-trial investigation of the charges, and the selection of and voting by the court-martial panel.

Rights warnings.  Most people are familiar with “Miranda” warnings – “ you have the right to remain silent, anything you say can and will be used against you in a court of law....”   In the civilian world, these warnings only need to be given if the police seek to interrogate someone who is actually in police custody.  In the military, the warnings must be given by any military member, whether they are law enforcement or not, who seeks to question a military member if they merely suspect that member of a crime.  You don’t have to be in custody, and unlike the civilian world, they have to tell you what it is you are suspected of having done before they question you.  This is most often violated in the military when members in the chain of command are trying to get to the bottom of something, but are unaware of their responsibilities under the UCMJ.

Pre-trial Investigation of Charges.  Before any charge can be referred to a general court-martial, it must be investigated by a commissioned officer, usually a lawyer, and usually an O-4 or above.  An accused has the right to a military lawyer free of charge, but may also hire a civilian attorney at his own expense, in addition to the military lawyer.  The media often refers to the Article 32 investigation as the “military equivalent” to a grand jury, but that’s not necessarily the case.  It is true that both the Article 32 investigation and the grand jury consider whether there is enough evidence to take an offense to trial.  But unlike a grand jury, which often takes place in secret and where the target might not even know that he or she is the subject of a grand jury investigation, an Article 32 investigation is open to the public (except in very limited circumstances), and the accused has an entire panoply of rights which, in many civilian jurisdictions, are unavailable to the target of a grand jury investigation.  Among these are the right to be informed of the nature of the accusation and the identity of the accuser, the right to cross-examine government witnesses and produce defense witnesses, and the right to present anything in defense, extenuation or mitigation. 

Selection of and voting by the court-martial panel.  In the civilian world, jurors are chosen from the general public to be part of a “venire” that may include hundreds of people.  When a case comes to trial, a portion of the venire is chosen as potential jurors in that case.  Through a process called “voir dire,” the potential jurors are examined by counsel for both sides in an effort to discern each potential juror’s attitudes regarding the issues in the case.  Through a series of challenges, the pool is whittled down to the number of jurors required in that jurisdiction, and there may be alternate jurors chosen if the law of the jurisdiction provides for it. 

In the military, the jury is called a “panel,” and the jurors are called “members.”  The potential members are selected by the convening authority (usually from his own command), and must be “best qualified for the duty by reason of their age, education, training, experience, length of service, and judicial temperament” in the opinion of the convening authority.  This means they must be personally selected by the convening authority.  Like the civilian community, the military also employs voir dire and challenges.  Challenges for “cause,” (bias, prejudice, knowledge about the case, etc.) are unlimited.  Each side also gets on peremptory challenge that it can use against any panel member for any reason, so long as the reason is not based on race or gender.

In the civilian world, there are usually 12 jurors.  In the military there can be any number of members, so long as there are at least three for a special court-martial and five for a general court-martial.  In capital cases, the minimum number is 12. 

In the civilian world, a unanimous verdict is required to convict in most jurisdictions, and the jury can take any number of votes and only stop voting when they either reach a unanimous verdict or the judge declares a mistrial because they cannot agree.  In the military, the panel only votes once.  If two-thirds of the members agree to convict, the result is conviction; if less than two thirds vote for conviction, the result is acquittal.  Because the result of the vote will always be conviction or acquittal, there are no “hung juries” in the military.