Are you a member of the military who has been accused of breaking the law? If you’ve violated the Uniform Code of Military Justice (UCMJ) or California Penal Code, you could be subject to a court-martial. A court-martial is essentially the military’s judicial system. This is where you will be formally tried for your crime by the military. If you are facing a court-martial it is important to understand how the process works. It is also important to assert your right to be represented by a civilian criminal defense attorney.
Not all criminal defense attorneys will be familiar with military law and court-martial procedures. In order to get the best possible defense, you need to contact the Law Office of Vikas Bajaj. Our military defense attorneys have more than 16 years of experience helping military personnel and veterans fight criminal charges across San Diego. We know that your civilian and military futures are at risk, and we are prepared to help you fight for the best possible result. Call us today to schedule a free consultation.
Court-Martial vs. State Court
A court-martial has jurisdiction over all members of the military. If you violate the UCMJ or break California state law, you can be required to appear before a court-martial. It’s important to understand that you could potentially be tried for the same crime in California state court and before a military court-martial. Each judicial system is separate – one is federal and one is state – so double jeopardy does not apply.
Understanding the Court-Martial Process
When someone is accused of violating California state law, they are required to go through the state’s judicial process. The same is also true when a member of the military is accused of violating military or state law. The military process, however, is much different from the process used by the state.
Here’s what you can expect to happen when a member of the military is accused of violating state or military law.
The court-martial process informally begins when you, as a member of the military, are accused of violating the UCMJ or California Penal Code. Once you have been accused, your commanding officer will determine if additional steps should be taken to prosecute.
Determining if Probable Cause Exists
Your commanding officer has the responsibility of determining whether there is probable cause to believe that you have violated the law. In order to do this, your commanding officer will review the accusations as well as any evidence or testimony that may exist. If your commander believes that probable cause exists, you will proceed to the next step in the court-martial process.
When your commanding officer determines that there is probable cause to support allegations of misconduct, you will be subject to confinement. The military can only confine you for a maximum of 72 hours and must explain the basis for the confinement. Your commanding officer will decide whether you should be prosecuted while you are subject to confinement.
Decision to Prosecute
If your commanding officer decides that you should be prosecuted, the formal court-martial process will begin with a reading of the charges. These charges must be read aloud to you by the convening authority. Your commanding officer and a neutral officer must also be present when the charges are read.
Court-Martial Level Assignment
Once you have been informed of the charges, the next step is to determine which court-martial will hear your case. There are three separate court-martial levels: general, special, and summary. The level to which you are assigned will typically depend on the seriousness of the crime you’ve been accused of committing.
What is the Jurisdiction of a General Courts-Martial?
The General Courts-Martial has jurisdiction over all enlisted members of the military for the most serious and violent crimes. These include, but are not limited to:
- Robbery, and
- Drug distribution.
Who Presides Over a General Courts-Martial?
A General Courts-Martial is tried before a military judge and a jury of at least 5 commissioned and/or warrant officers. If you are subject to a General Courts-Martial, you do have the right to request a bench trial or ask for part of the jury to include enlisted personnel.
Who Can Defend Me at a General Courts-Martial?
You have the right to request the assistance of a military defense attorney and/or a civilian military defense attorney. Your attorney of choice will have the opportunity to fully investigate your alleged crime, review evidence, and prepare a defense on your behalf.
What Penalties Can I Face If Convicted By a General Courts-Martial?
A General Courts-Martial has the authority to impose any penalties permitted by the UCMJ and Manual for Courts-Martial. Possible penalties can include:
- Partial or total forfeiture of pay and allowances
- Pay reduction
- Bad conduct discharge
- Dishonorable discharge
- Confinement for life, or
- Capital punishment.
The penalties that you will face will depend on the severity of your offense
What is the Jurisdiction of a Special Courts-Martial?
The Special Courts-Martial has jurisdiction over all enlisted member of the military for the mid-level and moderate crimes. These include, but are not limited to:
- Larceny, and
- Illicit drug use.
Who Presides Over a Special Courts-Martial?
A Special Courts-Martial is tried before a military judge and a jury of at least 3 military personnel. The jury must include commissioned and warrant officers. If you are enlisted, you also have the right to request that one-third of the jury is comprised of enlisted personnel. You also have the right to request a bench trial.
Who Can Defend Me at a Special Courts-Martial?
Even though they are not the most serious, crimes heard before a Special Courts-Martial can still have harsh consequences that can affect you for the rest of your life. This is why you maintain the right to request the assistance of a military defense attorney and/or a civilian military defense attorney.
What Penalties Can I Face If Convicted By a Special Courts-Martial?
A Special Courts-Martial only has the authority to impose certain penalties if you are convicted of a crime. These include:
- Partial forfeiture of pay
- Reduced pay
- Bad conduct discharge
- Confinement for 12 months.
Again, penalties will depend on the seriousness of your offense.
What is the Jurisdiction of a Summary Courts-Martial?
The Summary Courts-Martial is where the least serious crimes and violations are tried. These include, but are not limited to:
- Insubordination, and
- Minor infractions.
Who Presides Over a Summary Courts-Martial?
Since the Summary Courts-Martial is reserved for minor infractions and offenses, there is no judge or jury. Instead, a commissioned officer presides over the judicial process. As a result, the Summary Courts-Martial is much more like an administrative hearing, such as Administrative Separation, than a criminal proceeding.
What Penalties Can I Face If Convicted By a Summary Courts-Martial?
A Special Courts-Martial only has the authority to impose certain penalties if you are convicted of a crime. The maximum penalties will depend on your enlisted rank.
- E-4 and Below: Forfeiture of ⅔ pay for one month, confinement for 30 days, hard labor for 30 days, and/or reduced pay.
- E-4 and Above: Forfeiture of ⅔ pay for one month, reduced pay.
Who Can Defend Me at a Special Courts-Martial?
Since a Summary Courts-martial is still a criminal proceeding, you retain the right to hire a military and/or civil attorney. Your attorney will have the opportunity to argue on your behalf before the presiding officer.
Fighting Criminal Charges Before a Court-Martial
Have you been charged with a violation of California state law or the UCMJ? If so, you need to prepare yourself for the court-martial process. Hiring an attorney is an important first step if you want to protect your future. Contact the Law Office of Vikas Bajaj to find out how we can help you secure the best possible outcome in your military case. Our San Diego military defense attorneys have more than 16 years of experience handling both civilian and military criminal cases. We are here to help you navigate the court-martial process. Call us today to schedule a free case evaluation with our skilled legal team.