The Steps in a Court-Martial

What is preferral? What is an Article 32 hearing?

The UCMJ's criminal procedure is unique, with cases typically going through the following steps en route to court

Investigation

This is where law enforcement investigates the alleged misconduct. Investigations are conducted by a variety of agencies. Many investigations are conducted by the military branches’ law enforcement agencies, such as security forces/military police, Army Criminal Investigation Division (CID), Naval Criminal Investigative Service (NCIS), or the Air Force Office of Special Investigations (OSI). However, courts-martial can occur based on civilian law enforcement investigations as well. 

preferral

This is the military’s way of charging someone with a crime. Governed primarily by Rule for Courts-Martial 307, “preferring charges” just means that someone has taken an oath and accused another person of a crime under the Uniform Code of Military Justice (UCMJ). Although commanders oftentimes are the ones preferring charges, anyone subject to the UCMJ can do so. Once charges have been preferred against someone, that person officially has charges pending against them.

Article 32
Preliminary Hearing

In cases where a general court-martial is being considered, the charges must go through an Article 32 preliminary hearing. Functioning much like a preliminary hearing in the civilian world, this is a hearing where the prosecutor seeks to establish probable cause of the crimes. A preliminary hearing officer, who looks and acts similar to a judge but who is not formally designated a judge during the hearing, decides if there is probable cause. The preliminary hearing officer then writes a report. While the report is not determinative of whether a case actually goes to court-martial, it is a very important document highlighting the strengths and weaknesses of the evidence. As the name suggests, the preliminary hearing is governed primarily by Article 32 of the UCMJ, as well as Rule for Courts-Martial 405.

Referral

This is when a court-martial is formally ordered by someone with authority to do so (known as a “convening authority”). It is similar to the civilian process of when a case is “bound over” or “set” for trial. Essentially, it means the pre-trial phase is over and a person is officially going to face a criminal trial. The person referring the charges determines which type of court-martial an accused will face. Referral is governed primarily by Rule for Courts-Martial 601.

Trial at a Court-Martial

The pre-trial processing has been completed. This is the actual criminal trial.

For more information, click here for our page discussing constitutional rights at a court-martial.

Facing a Court-Martial?

If you are going through any of the steps discussed above, contact our team today for a free consultation.

YOU HAVE THE RIGHT TO HIRE AN ATTORNEY OF YOUR CHOICE

Facing a court-martial can be an overwhelming experience. Sometimes things move extremely fast and it’s like a blur. Other times, the investigation is painfully slow and fosters crippling anxiety. No matter what, it is important to have someone in your corner who you can trust. Someone who can advocate for you. And someone who isn’t afraid to stand-up against long odds.

As a former active duty JAG officer and two-time defense counsel in the Air Force, Ross Brennan at Cronauer Law is a seasoned advocate in military court rooms. Contact Cronauer Law today for a free consultation with an experienced military criminal defense attorney.

To learn more about a court-martial in the military, see these related links: