The military vs. civilian criminal justice system: quite a few surprises

  • Published
  • By Lt Col Lee A. Gronikowski
  • USAFR
GRAND FORKS AIR FORCE BASE, N.D. --  It is common for those in trouble to contend that the military justice system is flawed and unfair. However, the military justice system often affords an individual accused of a military offense more rights than someone who is charged with a crime in the civilian world. As Airmen and as American citizens, you need to know how the military justice system stacks up to its civilian counterpart in terms of fundamental fairness and rights. Here are some examples. Some of this information will undoubtedly surprise many readers.

The military justice system is based on the protections prescribed by the Constitution of the United States and the Uniform Code of Military Justice. The UCMJ is a federal criminal statute that was passed by Congress and signed into law by the President. Although the UCMJ resembles many civilian criminal laws, there are, of course, many forms of misconduct in the military that are not crimes in the civilian world, such as missing movement (failing to go) and conduct unbecoming an officer and a gentleman. Such strictly military offenses are necessary in our business to ensure good order, discipline and mission accomplishment.

In civilian practice, so-called Miranda Rights (the right to remain silent, to have an attorney, etc.) are given to suspects by the police. However, the police do not have to give a suspect Miranda rights all of the time; Miranda rights must be given only when a suspect is in custody, i.e., not free to leave, and the police then interrogate that suspect.
Article 31, UCMJ, rights are the military analog of civilian Miranda rights. However, military members must be given their Article 31 rights if they are merely questioned about a potential offense -- they need not be in custody at the time. The person asking the questions does not have to be an OSI agent or Security Forces member; anyone subject to the UCMJ, such as a first-sergeant or commander, must give a suspect Article 31 rights before any questioning takes place.

Civilian criminal defendants are entitled to free legal counsel only if they cannot afford their own lawyer. On the other hand, military members charged with an offense are entitled to free legal military legal counsel at all times. Military members may retain civilian counsel at their expense in addition to or in lieu of military counsel. The Air Force provides Area Defense Counsel for those accused of offenses. These criminal specialists are independent; they are not rated by or subject to orders by the command that preferred charges against an accused.

In civilian federal court and in most states, criminal charges are returned by a grand jury composed of citizens. Prosecutors present only one side of the case to the grand jury - the Government's. The defendant and his lawyer are not present. In many states, the prosecutor may even file charges without the benefit of a grand jury.
The military does not have grand juries; instead, the armed forces use what is known as an Article 32, UCMJ, investigation. An impartial, commissioned officer, usually a judge advocate who has no other involvement with the case, conducts the investigation. The Government presents its case to the investigating officer in an adversarial proceeding while the accused and the accused's attorney are present. The accused may use this proceeding to find out about the Government's case, to cross-examine Government witnesses, and, if desired, to present a defense; none of this happens in the civilian world. The investigating officer considers the evidence and makes a recommendation to the command. Options include taking no further action and withdrawing the charges, administrative action, or imposition of an Article 15. The investigating officer may recommend a court-martial if and only if that recommendation is supported by the evidence.

For that matter, there are many more options available to the military to discipline a member short of criminal charges, which could result in a conviction, a conviction that will appear on an individual's record for life. (Even if someone is court-martialed, there are several levels: general, special or summary, depending on the severity of the offense.) In lieu of a court-martial, the military could resort to administrative measures, such as discharge or promotion actions. Other non-criminal options are letters of admonition, letters of counseling, letters of reprimand, placement on the control roster, or placement of information in a UIF.

Civilian petit juries, those juries that decide the outcome of a trial, are selected from a wide cross-section of the community; some do not have a formal education. Military court-martial panels, on the other hand, are selected by the convening authority based on the members' age, education, training, length of service, and judicial temperament. By law, court-martial members are not subject to interference or command influence regarding their deliberations and their ultimate decision.

Normally, two-thirds of a court-martial panel must vote to convict; less than two-thirds results in an acquittal. There are no "hung juries" in the court-martial system, and the Government cannot retry a military member, unlike in civilian practice, where the prosecutor may elect to retry a defendant after a "hung jury" or a mistrial.

Finally, military members who are convicted of an offense receive automatic appellate review and free appellate military counsel, unlike in the civilian criminal justice system.
Although the military criminal justice system was designed to address the unique needs of the Armed Forces, it was also designed to protect the fundamental rights of an accused. Any perception that the military justice system is inherently unfair is simply not supported by the evidence.