Military and Civilian Justice Systems

Published Feb. 3, 2015
By Capt. Joshua Starr
366th Fighter Wing Legal Office

MOUNTAIN HOME AIR FORCE BASE -- Idaho -- Military courts-martial derive their authority from the U.S. Constitution, Article I, section 8, which states, "The Congress shall have power...to make rules for the government and regulation of the land and naval forces." The Uniform Code of Military Justice became the law for the military in 1951. By deriving their authority from Article I of the Constitution and the laws which Congress passes, military courts-martial differ at inception from civilian courts which derive their authority from Article III of the Constitution.

Military and civilian justice systems are similar in many regards, but they're also different in several respects - most notably, both the accused and victims have more rights and protections in the military system. Those which demonstrate the contrast most dramatically are the rights of suspects at interrogations, pretrial rights, privilege against self-incrimination, and the services available to victims of crimes.

Article 31 of the UCMJ requires that certain rights be read to a suspect prior to questioning. This applies both in custodial and non-custodial settings and to questions asked by virtually any superior to the suspect, and not just by police. In addition to the right to remain silent, that any statement may be used against the suspect, and the right to have a military defense counsel provided free of charge, the member must also be informed of the nature of the offense of which he or she is suspected. In a civilian arrest Miranda warnings must be read prior to any questioning of a suspect by a law enforcement agent, and those warnings are given only if in a custodial setting. Additionally, the suspect need not be informed of the crime for which he or she is suspected.

In both systems, when an individual is arrested, he or she is taken to the police station for processing. Unlike the civilian courts, the military justice system does not have a bail system. Following apprehension for a crime, a service member will normally be released and turned over to his or her commander or first sergeant. A commander must then decide whether it's necessary to order pre-trial confinement, some lesser form of restraint or no restriction at all. If pre-trial confinement is ordered, there are three review processes that follow to ensure confinement is proper. Once charges have been referred to trial, a military judge will also review the propriety of confinement upon motion from the defense. While in military pre-trial confinement, a member continues to receive full pay and allowances and will have ample time to meet with his or her defense counsel.

Compare that to the civilian side where, although practices vary between states, normally a magistrate will set the conditions for pre-trial release, unless the magistrate determines there are no conditions that will assure the defendant's presence at future proceedings or that the defendant is a danger to the community. Pre-trial release conditions usually take the form of bail. The defendant must produce a cash bond or use the services of a bail bondsman, who typically charges 10 percent of the bail amount. This 10 percent fee is nonrefundable regardless of the outcome at trial. Some states have a presumption that bail not be granted for certain serious offenses. If a person cannot make bail, they will sit in jail until trial.

Both systems have a preliminary hearing phase. Before a case can be tried in felony-level court, there will be a grand jury hearing or preliminary hearing. At these hearings, evidence is presented to ensure there is probable cause to believe the crime was committed and should be taken to trial.

Once a case has been taken to court, there's a difference in the number of jury members needed for conviction. In military courts-martial, two-thirds of the panel members must agree that guilt is proven beyond a reasonable doubt (except in capital cases where it requires a unanimous vote). If there is less than a two-thirds vote for guilt, the member is acquitted and can't be tried for the same offense again. Because unanimity isn't required in most circumstances, there's no potential for a hung jury. In many civilian courts, the jury must be unanimous in a finding of guilty or not guilty. Like the military courts-martial, guilt must be proven beyond a reasonable doubt; however, if the jury isn't unanimous on the guilty or not guilty verdict, it's considered a hung jury and a mistrial is declared. In the event of a hung jury, the defendant can be retried for the same offense which may mean further expense.

In addition to the rights and protections afforded to an accused, the military also offers unique services to assist victims through the military justice process. The Victim/Witness Assistance Program provides victims with a liaison who educates the victim on the military justice process and keeps them informed as the case proceeds. The liaison also informs them of available resources, compensation funds and other benefits. A Special Victim's Counsel is a judge advocate, independent from the chain of command, appointed to represent only the interests of sexual assault victims.

Military victims and military dependents are entitled to SVC representation. Like all military attorneys, SVCs are provided free of charge. A Sexual Assault Response Coordinator advises sexual assault victims of their reporting options and coordinates healthcare, counseling and other services (if eligible). In civilian courts, victim services vary between jurisdictions. Many jurisdictions have compensation funds to assist victims. Many also provide a liaison to the prosecutor's office to keep victims informed about the status of the case. However, there is no entitlement to representation by an attorney (free of charge) for victims in the civilian sector.

Overall, the military and civilian court systems differ in various ways, particularly in protections afforded to both the accused and victims. Any questions about the military justice process may be directed to the 366th Fighter Wing legal office at (208) 828-2238.

Military and Civilian Justice Systems

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