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A tribunal that tries violations of military Criminal Law. It often refers to the entire military justice process, from actual court proceedings to punishment.

First established in eighteenth-century U.S. law, the court-martial is today the result of tremendous modernization that has made it similar to a trial in federal district court. Defendants are presumed innocent until proven guilty, accorded considerable legal protections, and guaranteed the right to appeal. The court-martial is governed by the Uniform Code of Military Justice (10 U.S.C.A. §§ 801–940), a federal law that Congress originally passed in 1950, but that legislators, presidents, and the U.S. Supreme Court have since changed several times. Significant reforms of the court-martial now grant military defendants essentially the same due process rights that are afforded defendants in civilian courts.

The Uniform Code of Military Justice vests in the president of the United States the authority to draft and to amend the Manual for Courts-Martial, United States (10 U.S.C.A. §§ 801-946). This document includes a number of procedural rules in the military justice system, including the Rules for Courts-Martial and Military Rules of Evidence. These rules are practiced by judge advocates, who serve as the attorneys in the military justice system. While many of the rules are similar or analogous to procedural rules in the civil justice system, such as the Federal Rules of Criminal Procedure and the Federal Rules of Evidence, the military rules provide specific rights and procedures that do not have civil counterparts. In 1998, President William Jefferson Clinton approved several amendments to the Manual, including those related to pre- and post-trial confinement, trials, sentencing, substantive criminal offenses and defenses, post-trial procedures, and the authority of the Judge Advocate General.

Three levels of courts exist in the military justice system: military trial courts, courts of military review, and the U.S. Court of Military Appeals. Courts-martial are handled by the lowest courts, which are presided over by military trial judges who are quite similar to U.S. district court judges. These judges are commissioned officers selected by judge advocates according to rules established by Congress, and their responsibility for individual cases begins and ends with the court-martial process. The military trial courts are organized by the type of courts-martial that they address—summary, special, and general, which reflect increasingly serious charges and punishments.

Just as trials in civilian criminal courts are the result of work by police officers and prosecutors, courts-martial are preceded by a formal investigation. During questioning, military suspects have the same Fifth Amendment right to remain silent, as do civilians, as well as some additional rights. Civilian police officers must read a suspect the Miranda rights at the time of arrest. Article 31 of the Uniform Code of Military Justice requires military investigators to go even further: As soon as suspicion focuses on a suspect during interrogation, they must advise him or her of the right to remain silent. This stringent requirement places a higher burden on military investigators to protect suspects' rights, and later it can become grounds for the dismissal of charges if it is not followed.

Military laws provide generous protections to defendants before a case goes to trial. These include complete pretrial discovery, allowing defendants free access to witnesses and evidence, as well as a requirement that prosecutors reveal the names of witnesses who will be called during all stages of the trial. In addition, the government must provide defendants with expert witnesses at its own expense; judges may delay or dismiss trials if prosecutors fail to do so. The military judge is empowered to hear pretrial motions on a broad range of issues, ranging from alleged violations of the defendant's constitutional rights to the admissibility of evidence. Before the case is heard, defendants have the choice of trial by judge or jury, and enlisted members can request that at least one-third of the court be enlistees. Defendants may also elect to be provided with military counsel or to hire a civilian attorney.

The court-martial closely resembles a trial in federal court. Military judges have the same authority as federal judges to rule on all matters of law and to give orders to the prosecution and the defense on such procedural matters as arguments, motions, and challenges. Two differences are particularly significant. First, whereas few civilian courts allow jurors to pose questions to witnesses, military courts have long permitted the practice. Jurors may submit written questions, which both the prosecution and the defense read in order to prepare any possible objections, which also must be in writing. The judge then decides which questions to allow. Second, military judges have a greater duty than do federal judges to review a defendant's entry of a guilty plea. This duty is designed to protect defendants from Pleading guilty because of coercion, which could be more likely in the military because of its strict code of discipline and obedience to authority. Military Law requires judges to reject the plea at any stage of a proceeding if any hint of coercion is found.

The right to appeal convictions in military courts is different from that in civilian courts. Options for appeal are determined by the type of court-martial: Summary court-martial convictions, which are for lesser offenses, offer only the right to appeal to the commander who convened the court, and to make a further petition for review to the judge advocate general. Convictions in special and general courts-martial can be appealed to higher authorities, but the type of sentence handed down also governs a convicted party's rights. If the sentence is less than six months' confinement or a bad-conduct discharge, the case is reviewed by a legal officer in the convening authority's staff judge advocate's office, with no further appeals other than a right to petition the judge advocate general.

Greater convictions are automatically appealed to a court of military review, which considers matters of fact and law. Consisting largely of higher-ranking military judges, these courts exist for each branch of the military and have a total of 31 appellate military judges. The Uniform Code of Military Justice requires them to review serious sentences such as confinement of one year or more, dishonorable discharge, or dismissal of officers or cadets. Sentences to general officers and flag officers are also reviewed automatically. In all cases, defendants are granted free counsel for their appeals.

At the next level, the Court of Military Appeals—composed of five civilian judges who are appointed by the president of the United States—may decide to hear any petition from an unsuccessful appeal to a court of military review.

Finally, once military remedies have been exhausted, federal courts, including the U.S. Supreme Court, will review a court-martial conviction for claims of denial of constitutional rights.

Further readings

Ferris, Andrew M. 1994. "Military Justice: Removing the Probability of Unfairness." University of Cincinnati Law Review (fall).

Fuger, Stanley T. 1992. "Military Justice: Variation on a Theme." Connecticut Bar Journal (June).

Konecke, Eric J. 1995. "The Appointments Clause and Military Judges." Seton Hall Constitutional Law Journal (spring).

Wiener, Frederick B. 1990. "American Military Law in the Light of the First Mutiny Act's Tricentennial." Military Law Review (fall).

Any Last Words? The Evolution OF THE Court-Martial

Throughout most of its two-hundred-year history, the court-martial was the ogre of U.S. law. Modeled on sixteenth-century European ideas about discipline and punishment, courts-martial worked smoothly. Commanders ran them, defendants had few rights, and punishments were Arbitrary: disobedient soldiers were fined, jailed, or discharged, and deserters flogged or hanged. Constitutional Law rarely got in the way. Between 1775 and 1950, the U.S. military scarcely altered its methods. It was not until the Vietnam War era that reform came at the hands of federal lawmakers and judges. Today, the military tribunal resembles the average federal court.

Historically, the military justice system has always been distinct from the civilian court system. It formally began in 1775 when the Continental Congress enacted the first American Articles of War, closely modeled on the British Articles of War, which had their roots in sixteenth-century Europe. Under the articles, military justice had a simple two-sided goal: to promote good behavior and punish bad behavior. It specified civilian offenses such as murder and Larceny, and military offenses such as disobedience, disrespect to officers, and desertion. To try defendants for violations, it established a simple tribunal made up of officers under the control of their commander. Accused parties had few if any of the due process and appeal rights enjoyed by defendants in civilian courts. No standard rules for punishment existed; as with all matters in a court-martial, punishment was decided completely at the discretion of the commander.

Free from the constraints of civilian courts, early courts-martial produced stark results. General George Washington, like other commanders, understood the court-martial's potential for keeping order in the ranks. During the Revolutionary War, he ordered his troops to watch the execution of fellow soldiers who had been convicted of desertion. Discipline—often severe—remained the hallmark of the court-martial for the next century. Few citizens or politicians objected because military culture was highly esteemed. Soldiers who brought shame on the service were thought to deserve whatever they got.

Despite earnest efforts, few early critics of the court-martial achieved much. By the mid-1800s, scholarly calls for reform began with the work of John O'Brien, an Army lieutenant who wrote A Treatise on American Military Laws, and the Practice of Courts Martial: with Suggestions for Their Improvements in 1846. O'Brien argued for lessening the influence of commanders, enacting more uniform rules, and clearly establishing specific punishments. But neither lawmakers nor the courts were very impressed. Congress had always accepted the distinction between civilian and military justice, and in a number of decisions, the U.S. Supreme Court consistently upheld the constitutionality of the court-martial system.

The onset of World War I brought changes in the form of new Articles of War (Act of August 29, 1916, ch. 418, §§ 3–4, 39 Stat. 619, 650). Defense counsel was guaranteed "if such counsel be reasonably available," but there was no provision for appealing convictions. The author of the revision, Judge Advocate General Enoch H. Crowder, had scoffed at the latter idea in testimony before the U.S. Senate:

In a military code there can be, of course, no provision for courts of appeal. Military discipline and the purposes which it is expected to [serve] will not permit of the vexatious delays…. However, we safe guard the rights of an accused, and I think we effectively safeguard them, by requiring every case to be appealed in [the] sense [that commanding generals must approve every sentence, and sentences of death or dismissal require additional confirmation by the president] (S. Rep. No. 130, 64th Cong., 1st Sess. 34–35).

As a startling example soon showed, these protections had little if any value. In November 1917, a court-martial tried sixty-three members of the all-black Twenty-fourth Infantry Division of the U.S. Army who were charged with a variety of offenses, including mutiny and murder, stemming from a race riot in Houston in which over a dozen people had died. The court-martial convicted fifty-eight men. Thirteen were sentenced to death and hanged the following morning. Despite General Crowder's assurances, neither the president nor even the military authorities in Washington, D.C., had been informed. According to regulations, the authority of a department commander was sufficient in time of war to confirm death sentences and the commander's order needed no further confirmation because he was the convening authority who had started the court-martial.

The Houston hangings prompted an immediate tightening of the rules for death sentences, but the experience of drafted men in World War I and World War II brought about greater change. Called up to fight in the millions—and also court-martialed in the millions—civilians disliked their taste of military justice. As a result of public outcry, Senate hearings in 1917 led to a 1920 revision of the Articles of War. This revision provided for preliminary investigations, defense counsel, the presence of a legally trained member at every court-martial, and higher review of all sentences of death, dismissal, or dishonorable discharge. The right to defense counsel for soldiers was ahead of its time; civilians would not have this right universally recognized by the U.S. Supreme Court for several more decades. The new Articles of War also provided for automatic appellate review of convictions.

In practice, not all the provisions of the new articles were followed. Resources for carrying them out were limited, and commanders could not always be counted on to depart from tradition. The aftermath of World War II, in which some 2 million soldiers faced court-martial, brought even greater calls for reform.

Major reform began in 1950. Congress passed the Uniform Code of Military Justice (10 U.S.C.A. §§ 801–940), a sweeping reform of the military justice system applying to all branches of the service. This code created the Court of Military Appeals, a three-judge civilian body designed to review certain convictions. The code also extended greater protections to defendants: lawyers had to be assigned to defend them, and they now enjoyed significant due process rights. On the other hand, the military retained all other authority over the administration of military justice. The code kept the traditional hierarchy of three courts convened by commanders at increasingly higher command levels with escalating punishments—summary, special, and general courts-martial. It established "law officers" who functioned like judges, but it retained much of the traditional model of command control, which gave to commanders the power to appoint the investigating officer, counsel, and court members (with the enlisted accused having the right to request that one-third be enlisted members). And it extended court-martial jurisdiction over both service members and certain classes of civilians.

Further reform came through the courts and Congress. In 1955, the U.S. Supreme Court held that discharged service members could not be court-martialed for crimes committed while they were on active duty (United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8). In 1969 the Court held that a case could be tried at court-martial only if the offense was connected to the defendant's military service in O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291. In 1970, the Court of Military Appeals held that civilian employees of the military overseas could not be subjected to court-martial (United States v. Averette, 19 U.S.C.M.A 363).

Congress brought reform with the Military Justice Act of 1968 (Pub. L. 90-632, Oct. 24, 1968, 82 Stat. 1335), which revamped the Uniform Code of Military Justice. It accomplished several key changes: (1) court-martial procedures were made to resemble more closely those of U.S. district courts; (2) the law officer was changed to a military judge, with functions and powers like those of a federal district judge; (3) the military judge was protected from influence by military authorities; (4) new intermediate appellate courts of military review were created in each service; and (5) defendants were given the choice of trial by judge or by jury. Additional reform came in the Military Justice Act of 1983 (Pub. L. 98-209, Dec. 6, 1983, 97 Stat. 1393), which specifically provided for review of Court of Military Appeals decisions by the U.S. Supreme Court. By 1987, military justice had improved to the point that the U.S. Supreme Court overturned O'Callahan and returned to the military greater authority to conduct courts-martial (Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364).

Today the court-martial functions smoothly as a system governed by law. In every significant way, the modern court-martial is at least the equivalent of a federal criminal trial.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


1) n. a military court for trying offenses in violation of army, navy or other service rules and regulations, made up of military officers, who act as both finders of fact (in effect, a jury) and as arbiters (judges) of the law applying to the case. A general court-martial is conducted by a military legal officer (Judge Advocate) and at least five officers for major offenses, including those requiring the death penalty. A special court-martial is generally for lesser offenses and is conducted by three officers, who may order dismissal, hard labor, or lengthy confinement. Minor offenses are conducted by a single officer in a summary court-martial. 2) v. to charge a member of the military with an offense against military law, or to find him/her guilty of such a violation.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.
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