Preferral of Charges
The court-martial process begins with charges being “preferred” against you. Usually it is your commander who will prefer charges against you. During the preferral of charges, they will be read to you and you will sign an acknowledgment that you received them. At this point you will also be assigned a military defense lawyer and you should consider hiring an excellent civilian defense lawyer if you have not already done so. As well, the command will also indicate at this point whether they plan to send the case to a General or Special (or in some cases, a Summary) Court-Martial. In a Special Court-Martial, the maximum sentence is no more than one year of prison. In a General Court-Martial the maximum sentence is anything up to the death penalty, depending on the charges.
The Article 32 Hearing
The Article 32 Hearing used to be an investigation that was almost like a mini-trial in order to determine if the case against you should go to trial. Today it is not an investigation but rather a probable cause hearing that is non-binding on the command (they can, and often willl, send the charges to trial even if the Article 32 hearing officer finds no probable cause). Unfortunately, much of what you read online about the Article 32 Hearing is completely outdated. Congress has changed the rules drastically against you. You will also sometimes hear people say that it is similar to a civilian grand jury hearing. It is nothing of the kind. The prosecutor can just submit a paper file of the allegations and the hearing officer will usually find that sufficient. You need a defense lawyer who will fight this rubber stamp proceeding and lay the groundwork for trial.
Referral of Charges
After the Article 32 Hearing (or after the Preferral of Charges with a Special Court-Martial), the charges against you are “referred” by the commanding general or admiral to trial by court-martial. This is essentially a repeat of the preferral of charges with the charges again being read to you and you again signing a form saying that you received them.
After the referral of charges, the arraignment will take place. This will usually be the first time you will see a military judge and the courtroom. This is a scripted proceeding to start the court-martial record. The judge will ask you if you have a lawyer and will ask you how you plead. At this point your lawyer will usually ask to reserve (hold off on) pleas and the judge will grant the request.
Pre-Trial Motions Hearings
There will usually be at least one and often several more hearings in front of the judge where motions will be argued by both sides. These motions are very important as they often shape what evidence can come in at trial. Sometimes they can even cause the charges against you to be dismissed. You need to have a defense lawyer who understands how important the motions hearings are.
Selection of Judge or Jury
Shortly before trial you will make your final decision whether to go with a jury or judge alone. (Remember that the jury is picked by the commanding general or admiral who sent the case against you to trial.). This is one of the most important decisions you can make. Which one you should choose depends upon the kind of case and who the judge and jury members are. There is no one right answer. Sometimes you will read online that you should almost always go jury. This is not true. That advice is from lawyers who have not practiced in military court in a long time. Although often you should pick a jury, sometimes (especially in sex assault cases involving alcohol) the military jury is so biased that you may need to go judge alone for trial.
This is it. The actual trial which can last anywhere from a day to months. This is where the quality, experience and preparation of your defense lawyer mean everything.
MRE 412: the Military’s “Rape Shield” Law
If you have been accused of sexual assault in the U.S. military and court-martial charges have been preferred against you, one of the most confusing parts of the process is understanding what can and cannot be used at trial against your accuser.
Courts-martial, like other criminal trials, have limitations on what evidence and testimony is heard at trial. Some of these are rules you may have seen before on TV….things like “Objection! Hearsay!” Some of these rules protect you (for example, prosecution witnesses, such as law enforcement agents, are generally not allowed to testify that they think you are guilty) while other rules can drastically limit your defense.
A military rule of evidence (MRE) that can greatly hurt your defense at trial is MRE 412. This rule prohibits the admission of evidence of sexual behavior by your accuser (in a sexual assault court-martial) at trial, except under very limited circumstances. Obviously, this rule can prevent the panel (the “jury”) from understanding the context of the allegations and your accuser’s motivations and make it very hard for you to have a fair trial. This rule can even be used against you when you are testifying in your own defense!
To combat this rule, you need a defense lawyer who understands the MRE 412 rule inside and out, understands the case law (military court decisions) around MRE 412 and knows how to fight to get the most possible evidence in your defense admitted at trial!
The military courts have often defined “sexual behavior” when it comes to an accuser in very broad terms in order to limit your defense broadly. They have defined “flirting”, certain text messages, photos and many other things as “sexual behavior.” However, there are counter-arguments your lawyer can make. For example, the Army Court of Criminal Appeals (in a case called Alston) has ruled that evidence of a “romantic relationship” (such as dating) by itself is not sexual behavior under M.R.E. 412. However, if the relationship evidence is of a purely sexual relationship (such as with another service member in the barracks), that ruling doesn’t necessarily help you!
The good news is that there are three specific exceptions to MRE 412.
The first exception is evidence that someone other than you caused an injury or other physical evidence in the case. This exception most commonly arises when your accuser had a “rape kit” done and there is physical evidence in that kit that could have come from other sex she had in the past few days before the kit was conducted (often this involves light tearing of the posterior fourchette (a part of the vagina) — which happens in consensual sex all the time).
The second exception is other instances of sexual behavior between your accuser and you. This exception comes into play when you had some sort of relationship with your accuser and you need this evidence to show consent (or that you reasonably believed that he or she consented).
The third exception is evidence that is constitutionally necessary in your defense. This exception sounds like it should be broad and work to save you at trial. Unfortunately, the courts read this exception very narrowly and this is where your defense lawyer’s skill and experience are incredibly important to making the case as to why this exception applies. Usually, the best argument for this exception to MRE 412 applying is where there is evidence of the sexual behavior giving your accuser a reason to lie (for example, they had already been in trouble for sexual fraternization or adultery and if they were in trouble again for fraternizing with you so had to claim it was non-consensual to avoid being chaptered).
MRE 412 can greatly limit your defense and prevent you from having a fair trial and having your side of the story put in front of the members (the “jury”). You need a defense lawyer who understands every part of this rule and will fight to get your defense out at trial.
If you are unfortunately convicted of a charge, then a mini-trial to determine your sentence will be held. The prosecutors will introduce evidence and argue that you should get as much punishment as possible while your defense lawyers will introduce evidence to show why you do not need to be punished severely. Some lawyers are good at trial and some are good at sentencing. (Some are not good at anything.). Few are good at both. You need to be prepared and have defense lawyers ready both to win at trial and to defend you at sentencing in the worst case scenario.