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 Unfortunately, much of what you read online about the Article 32 Hearing is completely outdated.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.
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.