Constitutional Rights

If you’re facing court-martial, you may be wondering: Do my constitutional rights still apply? Despite popular belief, many of the constitutional rights that apply at a civilian criminal prosecution apply equally to a court-martial prosecution. Below is an overview of some of those rights.

Presumption of innocence

An accused at a court-martial is presumed innocent. Further, the burden of proof is on the government, i.e., the prosecution. The burden never shifts to an accused.

Guilt must be proven beyond a reasonable doubt

In order for an accused to be convicted, the prosecution’s evidence must prove guilt beyond a reasonable doubt.

Right to testify or remain silent

An accused can take the stand and testify on their own behalf, subject to cross-examination by the prosecutor. Conversely, an accused has an absolute right to remain silent. An accused’s silence at a court-martial cannot be held against them in any way by the judge or jury. To learn more about an accused’s right to remain silent, visit our page on Article 31.

Right to confront witnesses

An accused at a court-martial usually has the right to confront the witnesses against them pursuant to the Sixth Amendment Confrontation Clause.

Right against unreasonable searches and seizures

Although there are some nuances unique to the military, the protection against unreasonable searches and seizures generally applies. Thus, probable cause is often times needed before military authorities can search or seize something. This mainly applies to an accused’s own person, i.e., their body, and their personal belongings. 

Right to counsel

An accused has a constitutional right to have an attorney at a court-martial (subject to very limited exceptions). Further, an accused has a right to be represented by counsel of their choice at their expense. In other words, if you can afford it, you can have any attorney you want representing you.